Escape Hatch, Can Kick or Shutdown?

Senate Minority Leader Mitch McConnell, R-Ky., speaks at a news conference as House Speaker John Boehner of Ohio listens as t
Senate Minority Leader Mitch McConnell, R-Ky., speaks at a news conference as House Speaker John Boehner of Ohio listens as the debt crisis goes unresolved on Capitol Hill in Washington, Saturday, July 30, 2011. (AP Photo/Harry Hamburg)

The immigration fight just got a little more complicated for the Republicans. A federal judge in Texas issued a preliminary injunction blocking implementation of President Obama's new immigration policy, which has thrown a curve ball into the Republican congressional strategy of having a big political battle over immigration next week. Will they realize the ruling gives them a political "escape hatch" out of their unwinnable position? Will they use the legal case as an excuse to "kick the can down the road" a bit more? Or will they just go ahead and shut down the Department of Homeland Security anyway? These are really their only three viable options, and all of Washington is atwitter over which they'll choose to take.

The ruling was pretty predictable, since the Republicans went judge shopping to find the federal judge most opposed to the Obama immigration policy before filing their case. What happens next, legally, is not so predictable, but neither side should be counting on total victory at this point. The ruling itself is a standard sort of thing -- whenever a court case is winding its way through the system, judges routinely issue orders to preserve the legal status quo. As the judge wrote, you can't put toothpaste back in the tube. Obama's new program would have changed the status quo; therefore it is now on hold. But the ruling is not as sweeping as some are now pretending: It does not address the actual constitutionality of Obama's action at all, because the case itself hasn't been ruled upon. (It's just a temporary injunction, not a judicial decision.) So Republicans saying a judge has agreed with them that Obama's actions were "illegal" are simply not true, at least not yet.

Liberals call the judge's reasoning for the injunction spurious and predict it will be overturned on appeal. The appellate court they have to go to, however, is the Fifth Circuit -- a very conservative venue. But whether the judge's order is overturned immediately or not, the court case itself is nowhere near over. In the end, however, the court case will quite likely go against the Obama administration, given the judge who will be ruling on it. Other federal judges have ruled in favor of the Obama administration on the same question, so the whole thing could wind up before the Supreme Court as early as next year. But for the time being, Obama's hands are tied; the program will not start (at least not until after the Fifth Circuit rules on the expected appeal, which would likely take at least a few weeks).

But the funding for Homeland Security runs out on the 27th of this month. So Congress is almost certainly going to have to act before anything else happens in the courts, which is why there's been a burst of speculation about what the Republicans will do next. The first thought many had was that this gives the Republicans the perfect exit from a corner they had painted themselves into. They'd have an easy excuse to end their hostage taking over the DHS budget, because they could say, "The courts have halted Obama's new program; therefore we can go ahead and fund the department's budget," without the poison-pill language they've inserted in an effort to overturn Obama's policy. It'd be an easy way out of the mess for Republicans, in other words. "Congress didn't have to act, because the judiciary acted instead," they could tell themselves. Call it the judicial escape hatch (as many have already done).

Republican leaders showed no immediate inclination to take this route, though, which gave rise to further speculation that they would instead opt for kicking the can down the road a bit. This would be the second such can kick on the DHS budget. (The first was in December, which set up the artificial and self-imposed deadline of Feb. 27.) Republicans might be more inclined to postpone their big political fight, this reasoning goes, but still refuse to fund the DHS budget for the rest of the fiscal year. After all, the circuit court could rule as early as March, so perhaps a one-month or two-month budget extension would be the way to go. That way, if the appellate court reversed the judge's ruling, Congress could jump in and restart the big immigration showdown.

Republican leaders haven't noticeably warmed to this idea yet. The rank and file are already against the notion. We've got the big fight scheduled for the next two weeks," they argue, so why postpone it a month? Nothing will change in that time period no matter what the courts rule, so let's have the fight now while we're all keyed up and ready for it!

This is where reality and fantasy crash into each other, of course. The fantasy of the hardliners in both the House and the Senate is that a whole passel of Democrats will suddenly see the light and start voting for their bill. This is just not going to happen. The very best-case scenario for Republicans would be passing the House bill in the Senate (gaining the six or seven Democratic votes they'll need) -- and then watching the president veto it. The veto would put us all right back in square one. There is just no way Republicans are ever going to gin up a veto-proof two-thirds majority in both houses of Congress to overturn such a veto. That's the hard, cold reality of the situation that the hardliners refuse to face.

This fact brings us to the third choice the Republican leaders have: Let the hardliners drive things over the brink, and shut down the Department of Homeland Security. Yeah, that'll show Obama! Most people employed by the department would have to keep showing up for work anyway (being "essential" personnel), so nothing much would change, the hardliners will argue. But this ignores the fact that even though they'll all show up, they will not be getting paychecks. Do you really want TSA workers and the Border Patrol and the FBI disgruntled about their paychecks? Really?

Once again, the reality (as opposed to the fantasy) is that Obama is going to win this political fight even if the department is temporarily shut down. Polling already shows that the public would blame Republicans more than Obama for such a shutdown by a margin of 53 percent to 30 percent. And that's before most people are even paying attention.

The Republican leadership is well aware of this reality. They know how bad it would look for them to shut down a crucial branch of the government a mere two months after taking control of both houses of Congress. So much for "getting things done," eh? But the basic political dynamic they're facing within their own party is going to be unforgiving (as it usually is) when the reality meets the fantasy. The hardliners will tell each other, "We could have done it if we had just refused to budge," even though this is patently ridiculous, given the math.

So my prediction is that nothing much is going to change in the next week. John Boehner and Mitch McConnell will still be locked into a standoff to see which one blinks first, by finally moving on a "clean" budget bill. Neither one will see any possible political benefit from acting in any fashion right up until the last minute. To do so would be to cave before the battle is truly joined, according to the hardliners.

Both McConnell and Boehner will be reliably parroting the hardliners' talking points for at least the next week. The pressure has to rise before any action will be even contemplated. Some time on the last day possible, some action may begin (or perhaps a few days after the last day possible, if they go ahead and shut the department down to really prove their conservative bona fides to the rank and file).

In the end, either Boehner or McConnell will blink. A clean bill will pass, with the help of many Democratic votes, and Obama will sign it. This may only be a "kick the can" bill that postpones the fight for a few weeks or a few months, or it may fund the department for the rest of the year. Either way, at the time the clean bill is introduced -- but not one second before -- Republicans will indeed use the escape hatch and try to sell their own members on the "We don't need to do this, because the courts are doing it for us!" rationale. But we've got at least a week's more kabuki theater to endure before this happens, and during that time neither Boehner nor McConnell will publicly be seen to give an inch on the hardliners' fantasy.


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