Republicans have promised that Congress will act to counter President Barack Obama’s sweeping executive actions on immigration and deportations. But the party is divided on what to do, with the conservative flank pushing for confrontation while party leaders urge restraint and take the temperature for a more cautious approach.
“If we handle this poorly it could blow up in our face,” said John Feehery, a longtime Republican strategist turned lobbyist who supports immigration reform.
One possibility that has faded quickly is impeachment. Even immigration reform arch-enemy Rep. Steve King (R-IA) has ruled it out. “I don’t want to do the ‘I word.’ Nobody wants to throw the nation into that kind of turmoil,” he told CNN on Thursday after Obama’s announcement.
The GOP could begin to establish a course of action as early as next week, when Congress returns from the Thanksgiving recess, although it might take longer as some aides point out that the newly elected senators will want to have a say once they take office in January.
“There are options like funding restrictions, or just straight-up legislation. But people are looking at all kinds of ideas,” one senior Republican aide said.
Here is the TPM breakdown of the possible scenarios, with early and unofficial, back-of-the-envelope probabilities for each one being attempted (none of which precludes other options). Each option contains significant pitfalls for Republicans when it comes to ultimately reversing what they universally decry as a lawless usurpation of legislative power by Obama.
House Speaker John Boehner (AP Photo/J. Scott Applewhite)
Sue Obama (40% chance)
A spokesman for Speaker John Boehner’s (R-OH) office said the House is considering suing to block Obama’s moves. This approach has the support of lawmakers like Sens. Rand Paul (R-KY), John McCain (R-AZ) and Rob Portman (R-OH). House GOP leaders are warm to this strategy because it takes the heat out of the legislative arena and sends it to the courts.
But there are two problems. The first, as McCain observed, is that Congress probably lacks “standing” to sue, which means they’d have to find a plaintiff who can show Obama’s action harmed them. The second, as some prominent legal scholars have argued, is that Republicans would have a weak case on the merits. The administration put out a 33-page memo detaining the legal justification of the actions, citing Supreme Court cases Arizona v. U.S. and Heckler v. Chaney as examples of the wide “prosecutorial discretion” presidents have when it comes to enforcing immigration laws. Ronald Reagan and George H. W. Bush have used the same justification to defer deportations for certain groups of undocumented immigrants.
Defund and threaten a government shutdown (30% chance)
This is a two-step plan pushed by Sen. Jeff Sessions (R-AL), Sen. Ted Cruz (R-TX) and more than 50 House Republicans. First the GOP would ensure a short-term measure to keep the federal government funded beyond Dec. 11. Then they’d use their majorities in the new Congress to attach a legislative rider to the next spending bill that prohibits officials from using money to process work permits for undocumented immigrants.
This strategy carries echoes of the Obamacare shutdown fight in 2013. The first problem is that Republicans might not be able to get such a bill through Congress. Even a 54-seat Senate majority (in the event that Bill Cassidy defeats Louisiana Sen. Mary Landrieu in the December runoff) is unlikely to find 60 votes to defeat a Democratic filibuster and pass such a bill. And even if that bill were to pass, senior administration officials have said Obama would veto it. Unless public support collapses and Democrats defect in large numbers, Republicans wouldn’t have the two-thirds majority to override the veto.
If history is any indication, Obama would have the advantage in a shutdown standoff because the public tends to blame the party running Congress.
But the GOP base wants this fight. In a fundraising email to supporters on Monday, the Tea Party Patriots slammed Republicans for leaving town without a solution, saying: “The politicians won’t defund this unconstitutional monstrosity unless ‘We the People’ make them.”
Sen. Jeff Sessions (Rex Features via AP Images)
Grind nominations to a halt (10% chance)
Under this option, pushed by Sen. Ted Cruz, incoming Majority Leader Mitch McConnell (R-KY) “should announce that the 114th Congress will not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists.”
As a test case, two high-profile nominations are coming up: Loretta Lynch for attorney general, and Chuck Hagel’s replacement as secretary of defense.
If McConnell doesn’t play ball, it would weigh heavily on the Obama administration. But that also risks political blowback and charges of overreach.
Throw a fit but avoid confrontation (10%)
An option privately favored by Republican leaders is to act under “regular order,” which means to hold committee hearings and floor debate on Obama’s actions, and potentially pass legislation to express the will of Congress.
The advantage of this approach is it allows committees to investigate the White House and members to vent their frustrations, all without the risk of overreaching. But the conservative base dislikes this idea because it would end in a whimper. Any measure would face a filibuster in the Senate and a veto by Obama if it undermines his executive actions.
Censure Obama (8% chance)
Rep. Raul Labrador (R-ID) said Sunday on CBS, “I think we should censure the president of the United States. I think it’s unfortunate that he did this, I think we need to lay out clearly why this is unlawful.” The idea of a censure has also been pushed by King and outside conservatives like John Fund in the National Review.
A “censure” effort would be red meat for the conservative base, but it’s a dead end, requiring a majority in the House and likely a super-majority in the Senate. There’s also no clear constitutional basis for one branch of government to censure another — the tool is typically used by Congress to reprimand one of its own members. Only one U.S. president has ever been censured by Congress, and that action was later expunged.
Rep. Steve King (AP Photo/J. Scott Applewhite)
Impeach! Impeach! Impeach! (1% chance)
The nuclear option is impeachment, but even far-right lawmakers have soured on it, and Republican leaders want to stay as far away from it as possible. The idea carries few rewards, other than to rile up the conservative base, and enormous risks. Even if the House voted to impeach Obama, nobody believes the Senate would muster the two-thirds majority needed to remove him from office. If the Bill Clinton impeachment saga is any indication, this could boost public sympathy for an unpopular Obama and damage the GOP’s brand. That’s especially dangerous ahead of the 2016 presidential election.
While conservative pundit Charles Krauthammer has called Obama’s action an “impeachable offense,” both Rep. King and Sen. Sessions, immigration hardliners, have ruled it out.
Republicans realize that even if Obama were removed from office, it would simply mean that President Joe Biden implements his immigration actions.
Pass immigration reform (1% chance)
Obama insists his preference is for Congress to act and supersede his unilateral actions, but Republicans are too divided to coalesce around a policy solution on immigration. House GOP leaders have failed to act since the 2012 election, and their members have little appetite to deal with the overall problem, particularly the 11 million people in the country illegally. Without a solution that addresses undocumented immigrants, guest-worker reforms and border security, the pro-reform coalition fractures.
Although Sen. Jeff Flake (R-AZ) said the GOP should respond to Obama’s actions by passing immigration reform, there is scant support in the party for this approach.