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GOP's "escape hatch"? Why the immigration ruling won't solve the DHS funding crisis

A Texas judge has halted Obama's executive actions, but don't expect that to resolve the Homeland Security impasse


Jim Newell
February 17, 2015 11:00PM (UTC)

A hardline anti-immigration judge in Texas, chosen specifically by GOP plaintiffs as the arbiter for their case because he is a hardline anti-immigration judge in Texas, has issued an injunction on the Obama administration's 2014 executive actions on deportation.

The new programs, offering relief to up to five million undocumented immigrants, won't go into effect for now, but there's still a lot of court-ing left. This injunction didn't even touch the question of whether the actions were constitutional. Judge Andrew Hanen, a W. Bush appointee, is of the opinion that the administration didn't follow proper protocol in rolling out a new federal program. This will probably not stop conservatives from sending out releases today about how a federal judge stopped Obama's unconstitutional actions on the grounds of their unconstitutionality because THE CONSTITUTION. It was unconstitutional to them before the courts weighed in, it is unconstitutional today, and it will be unconstitutional regardless of what our designated third-branch adjudicators of constitutionality eventually decide.

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The question of the hour is how the injunction will affect the Republicans' latest legislative crisis of their own making: funding for the Department of Homeland Security, set to expire at the end of the month. Before the injunction, things were looking mighty partial-shutdowny. House conservatives are demanding a demonstration of backbone/stomach/balls from John Boehner and he seems willing to play along, like he's got a hot hand here, like the public will apportion blame onto the Democratic party in the event of a funding lapse. This is unlikely.

The optimistic read, for those who like their beer cold and their government funded, is that the injunction offers GOP leaders the perfect political "escape hatch" they've been seeking. Escape hatch! Escape... hatch? Boehner and Mitch McConnell could tell conservatives, look, the courts have delayed the new programs for now, so let's just go ahead and pass a "clean" DHS bill funding the department without riders. This is, after all, the way the system should work: if there's a government program that you consider illegal, you challenge its legality in court to determine if you're right. You do not decide to hold government funding hostage, constantly. This is basically what the Washington Post's Jennifer Rubin -- of the "as long as we're bombing every country, I don't really care about anything else" school of conservatism -- argues this morning:

But ultimately the Republicans’ best hope resides in the courts, which can block the president’s action and affirm their objections to the president’s unilateralism. If Republicans were to pass even a short-term “clean” spending bill, they could honestly say that they have not capitulated, but rather, are operating with the assurance the president will not be able to work his will.

The word "could" does a lot of the heavy lifting in the Escape Hatch theory, as it does in all alternate theories of Republican governance. GOP leaders could use this argument to bring the rank-and-file back from cliff's edge. They could have a new rationale for backing off. They could opt for a tactical strategy that demonstrates basic adult competence. Republicans could stop going out of their way to devise new legislative crises every few months, forever.

Then there is what they will do. Conservatives will not see the injunction as an "escape hatch." They will, more likely, see it as proof that they need to hold the line and do everything in their power to eliminate these executive actions. They will interpret it as leverage in the court of public opinion. They will find it much, much harder to back down now. To have a judge rule agains the programs, and then... drop their ongoing legislative posture against the programs? That's just not the way that our beloved House Republicans roll.

This "escape hatch" is a fine escape hatch, as escape hatches go. But it's far too reasonable a path for congressional leaders to consider following it. That a new development offers such a clear opportunity to loosen congressional deadlock ensures that it will tighten, in accordance with the ancient rule of LOL Nothing Matters.


Jim Newell

Jim Newell covers politics and media for Salon.

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