Republican leaders may have found the eventual off-ramp in their showdown with the White House over immigration.
Speaker John A. Boehner floated one tried and true idea to his restive conference Tuesday — suing.
A lawsuit has plenty going for it politically, and it’s starting to become a go-to move for the GOP. It has a certain elegance — it kicks a constitutional question to the Constitution’s built-in referee.
Can a president grant temporary executive amnesty and work permits to as many as 5 million immigrants without an act of Congress?
And, as Sen. Susan Collins of Maine noted in a recent hallway interview with reporters talking up the idea, the Supreme Court already has ruled in the GOP’s favor on — for example — Obama’s disputed recess appointments.
Legal scholars and administration officials have previously questioned whether a lawsuit would have standing in court, and the administration points to precedents involving smaller amnesties granted by previous presidents.
But all they’d have to do is convince five Republican-nominated justices on the Supreme Court to win.
And it could help Republican leaders avoid what they have said repeatedly they want to avoid — another government shutdown.
Leaders in both chambers haven’t yet said they will outright cave on so-called clean funding for the Department of Homeland Security when push comes to shove, but they’ve come pretty darn close, despite Boehner’s comments last year about fighting Obama “tooth and nail.”
Leaders have repeatedly said they won’t shut down the government, and Obama has again and again vowed to veto any bill that aims to roll back his immigration actions.
Republicans don’t have the votes to override a veto and don’t have 60 votes in the Senate to send a bill to Obama’s desk in the first place. (Some 45 senators who caucus with the Democrats wrote a letter Tuesday saying the bill “cannot pass the Senate” and urged Senate Majority Leader Mitch McConnell to pass a “clean” bill instead.)
The political reality is Republican leaders have to go through the motions and give the old college try so they can tell conservatives they tried as hard as they could.
That’s not enough for some hardliners, such as Sen. Jeff Sessions of Alabama who want leaders to dig in.
“I’m not willing to concede that this is a doomed exercise,” Sessions said Monday.
But they haven’t laid out a plausible scenario that leads to Obama — or Democrats — caving on one of the most significant actions of his presidency.
The show, meanwhile, must go on.
Senate Republicans will move next to the funding bill, McConnell said Tuesday.
Sen. Roy Blunt, R-Mo., said his party would try to get Democrats on board: "The House has sent over to the Senate a bill that deals with a very important issue: Does the law matter or not?
"This is an important fight to have. I think we should do everything we can to persuade at least a half-a-dozen Democrats that they should join us to get this done. Sometimes, you don't know how these legislative battles go if you don't have them, and we intend to have this one.”
A House GOP leadership aide lobbed the issue right back at the Senate.
"Everybody is trying to float theories, but we really can't figure out what to do next until we see what the Senate can or can't do,” the aide said.
Homeland Security Appropriations Subcommittee Chairman John Carter of Texas said he planned to meet with his Senate counterparts, “this week or next,” to see what they could accomplish.
“We’re going to fund the Department of Homeland Security,” Carter said. “I can guarantee you.”
McConnell, for his part, declined to comment on the lawsuit idea, but his No. 2, Majority Whip John Cornyn, R-Texas, likes the idea.
"I hope they win," Cornyn said. "I'm for using every tool in the tool box."
(A Senate GOP aide noted the Senate is unlikely to consider a lawsuit because Democrats could filibuster a resolution to go to court. That would likely leave the House to file suit alone.)
Cornyn mentioned the lawsuit already underway in Brownsville, Texas where the state attorney general has sued to block the president's executive action. Two-dozen states and attorneys general, most of them Republican, later joined the lawsuit. Blunt, Cornyn, Sen. Ted Cruz, R-Texas, and a number of House Republicans filed an amicus brief in the case last year.
"Now, 26 states, a majority of states, have joined that lawsuit challenging the president's unconstitutional executive action," Cornyn said, adding that the cost of the action is born primarily by states and localities.
"So I think we ought to use legislation, litigation, anything we can do," Cornyn said.
Adam Jentleson, spokesman for Minority Leader Harry Reid, D-Nev., called the push to pass the House’s homeland security funding bill a “sad joke.”
“Everyone knows how this is going to end: The Senate and the House will pass a clean bill,” Jentleson said, dismissing the intervening drama as “unnecessary and risky.”
House Republicans are simultaneously feuding among themselves over a separate border security bill authored by House Homeland Security Chairman Michael McCaul, R-Texas. GOP leaders pulled the bill this week, first under threat of snow. Conservatives later took credit for keeping it off the floor with no timetable for a return.
Rep. Raúl R. Labrador of Idaho told CQ Roll Call some of the credit for holding up the border bill belonged to the new group conservative Republicans have been putting together for the past few weeks, the House Freedom Caucus.
The group held its first official meeting Monday night, and while the roughly 40-member pow-wow was supposed to be about bylaws, the meeting ended up focusing on immigration and the border bill.
Rep. Mo Brooks of Alabama, a member of the group, said he wants to see how hard Republican leaders fight Obama’s executive actions.
"Whether the House and Senate leadership will live up to those representations, only time will tell," he said.
Tamar Hallerman, Emily Ethridge, Humberto Sanchez, Niels Lesniewski and Matt Fuller contributed to this report.
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