GOP's new immigration deceit: Republicans are dishonestly reframing the DHS funding fight

Republicans overstate the scope of a ruling against Obama's immigration orders to give themselves a political edge

By Simon Maloy

Published February 18, 2015 3:50PM (EST)

John Boehner, Ted Cruz, Mitch McConnell                                                                                                                                      (Reuters/Larry Downing/Adrees Latif/AP/J. Scott Applewhite)
John Boehner, Ted Cruz, Mitch McConnell (Reuters/Larry Downing/Adrees Latif/AP/J. Scott Applewhite)

If you’re some sort of weird, horribly bad news consumer who only receives information about current events from Republican press releases, then you would be forgiven for thinking that President Obama’s immigration orders had suffered a devastating blow and crushing legal rebuke from the courts yesterday.

Federal judge Andrew Hanen blocked the implementation of Obama’s November 2014 executive action shielding 5 million some-odd undocumented immigrants from deportation. Responding to the order, Speaker John Boehner released a statement celebrating Hanen’s move and swiping at the president. “The president said 22 times he did not have the authority to take the very action on immigration he eventually did,” Boehner said, “so it is no surprise that at least one court has agreed.” Similarly, Senate majority leader Mitch McConnell reacted to the decision by saying it “underscores what the President has already acknowledged publicly 22 times: He doesn’t have the authority to take the kinds of actions he once referred to as ‘ignoring the law’ and ‘unwise and unfair.’”

Ted Cruz used the ruling to lash out at Senate Democrats for filibustering the House-passed DHS funding bill, would roll back Obama’s executive actions on deportations. “It is the height of irresponsibility for the Democrats to block this funding in an extreme attempt to save Obama's amnesty, which a federal judge has just declared illegal,” Cruz’s statement read.

It probably won’t surprise you to learn that all of these statements by all of these leading figures of the Republican Party are wrong. Judge Hanen did not rule that Obama lacks the authority for the actions he took on immigration, and he certainly did not declare Obama’s executive actions “illegal.”

Vox’s Dara Lind has the best run-down of what Hanen’s ruling actually did – he ordered an injunction that prevents the government from implementing the programs Obama created through his executive action. In doing so he arrived at two conclusions: that the government had failed to adhere to legally required procedures for implementing new regulations, and that the state governments that sued to block Obama’s actions do have the proper standing to bring the case before a judge. Those findings are significant (even if they are based on “questionable reasoning”) but they say nothing about the constitutional question of whether the president has the authority to take the actions Obama ordered. His ruling states outright that it “does not rule on the substantive merits” of Obama’s immigration orders.

To be clear, the ruling is not good for the administration – Hanen is known for his antagonism towards undocumented immigrants, and his injunction creates an air of legal uncertainty. It seems likely that as the case moves up through the courts it will run into judges who don’t grind their axes quite as much, but King v. Burwell has taught us never to underestimate the willingness of judges to act as partisans. Regardless, right now when the elected leaders of the GOP claim that a federal court ruled that Obama doesn’t have the power to order “amnesty” or that his action was illegal, they’re lying. The next question is: why are they lying?

Well, part of it is just plain-old partisanship and the irresistible temptation to lend their criticisms of the president a patina of legal legitimacy. But they also have an immediate political crisis on their hands that Hanen’s well-timed ruling speaks to. The Republicans in Congress are fighting amongst themselves over the House’s bill to fund DHS and undo these same executive actions on immigration. As noted, the bill can’t get past a Democratic filibuster, and the February 27 deadline for funding the agency is rapidly approaching. Boehner and the House Republicans are, for the moment, refusing to consider any other legislation for funding DHS, despite entreaties from Senate Republicans. As it stands, they’d rather risk shutting down DHS and blaming everything on Democrats in the Senate.

The Hanen order – or, at least, the way Republicans are mischaracterizing it – helps the GOP in its effort to paint the Democrats as unreasonable obstructionists. “Why are the Democrats protecting Obama’s icky amnesty,” the argument goes, “if it’s already been declared ILLEGAL and UNCONSTITUTIONAL by a FEDERAL JUDGE???”

Again, that didn’t actually happen, but it sure makes for a handy talking point. The Democrats are holding firm, at least for the time being, and not backing down in their opposition to the House bill. Nor should they, given that Republicans are in just as weak a position as they were two days ago.

Simon Maloy

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