The Hill — The Department of Homeland Security on Tuesday suspended President Obama’s expansion of deportation deferrals, scrambling a congressional debate over how to prevent a shutdown of the agency late next week.
The DHS put the brakes on Obama’s executive actions after a Texas federal judge issued a temporary injunction blocking the new program, which could shield up to 5 million immigrants from deportation.
How the ruling ultimately affects the Homeland Security debate remains to be seen.
Many conservative Republicans, emboldened by the Texas decision, are doubling down on their argument that the funding bill must include provisions undoing Obama’s executive actions on immigration from both late last year and 2012, when the president offered legal status to millions of young people who entered or stayed in the country illegally.
“We cannot and must not establish the precedent that we will fund illegal actions on the hope that another branch of government will intervene and strike down that illegal action at some later point,” Sen. Jeff Sessions (R-Ala.), an outspoken immigration hard-liner, said Tuesday in a statement.
But the ruling could also furnish GOP leaders, who have been at odds over which chamber should take the next step in the stalemate, with a way to fund the agency without abandoning their commitment to dismantling Obama’s executive action.
“It could be a face-saving device,” said Stephen Legomsky, a former chief counsel at the DHS’s Citizenship and Immigration Services branch and now a professor at Washington University School of Law. “It could really cut either way.”
Republicans in the Senate and House have been stuck over how to fund the DHS.
The GOP-led House passed a $40 billion funding bill that included legislative riders dismantling Obama’s immigration actions. That measure has been repeatedly filibustered by Senate Democrats, who want nothing short of a “clean” funding bill free of controversial immigration riders.
Several centrist Republicans have argued the House should adopt a different bill. These Republicans worry their party will get the blame if there is a partial shutdown of Homeland Security after Feb. 27, when funding is due to lapse.
A CNN/ORC survey out Tuesday revealed that 53 percent of Americans would place blame with congressional Republicans for an agency shutdown, while only 30 percent would point fingers at Obama.
In the House, those calls have been rejected as surrender to Obama, and many conservatives say it’s worth risking the shutdown to take Obama on over the immigration actions.
A spokesman for Speaker John Boehner (R-Ohio) wouldn’t comment on whether the ruling handed the GOP an escape hatch.
Obama said the Justice Department would quickly appeal the decision by U.S. District Judge Andrew Hanen. He said he was confident it was “well within my authority” to take the actions.
“I disagree with it. I think the law is on our side and history is on our side,” Obama said of the decision in comments from the Oval Office.
The White House also said it may ask an appellate court to issue an emergency order undoing Monday’s decision.
But legal experts said the case is likely headed to the Supreme Court, where a final ruling could be months away.
“The district courts have now split, the courts of appeals could possibly do the same, and we have 38 states weighing in on the two sides,” said Legomsky.
“In addition, the issue of what the limits are to executive discretion is an important one,” he added. “So I think there’s a good chance” it heads to the Supreme Court.
Congress is in the middle of a weeklong Presidents Day recess, meaning lawmakers will have just days to figure out how to keep the DHS running after returning to Washington. Most of the agency’s 240,000 border security personnel, Transportation Security Administration agents and other workers would stay on the job in the event of a shutdown, though they wouldn’t get paid. Up to 30,0000 non-essential employees would be sent home.
Homeland Security Secretary Jeh Johnson said his agency had no choice but to comply and stop accepting applications for deportation deferrals. That included a program — set to take effect on Wednesday — allowing more immigrants who came to the country illegally as children to remain in the United States.
“The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority,” Johnson said in a statement. “We fully expect to ultimately prevail in the courts, and we will be prepared to implement [these programs] once we do.”
Immigrant rights groups are also proceeding as if Hanen’s decision will eventually be overturned, urging those who might benefit from the new programs to continue gathering the required application documents.
The advocates are also hoping the administration will ask the appeals court for an emergency order blocking the Texas ruling.
