The Court has Ruled, Now What?

Executive Director

February 17, 2015

Judge

It pays to shop around.

Twenty-six states banded together to sue the Obama administration regarding last year’s executive actions to bring a bit of sanity to the immigration system. They were strategic in their choice of courts.

Late February 16, their judge of choice, Judge Hanen of the South Texas Court, issued an injunction against the administration.

Dara Lind of Vox has a great write up here.

Since I only play a lawyer on television, I’ll leave it to the lawyers to parse the opinion. But the political ramifications of all this are going to play themselves out in interesting ways.

On first blush, when it comes to DHS funding, Republican leadership may have gotten a small break.

Because, remember the Senate failed to pass the House DHS funding legislation three times last week. In each instance, Senate Democrats held the line. On Tuesday, February 3, Senator Heller (R-Nevada) joined Democrats voting against the bill.

Over the course of last week, Republican Senators asked their House colleagues to send over legislation to fund DHS by the February 27 deadline that could actually pass.

To which Speaker Boehner held his own line, telling the Senate to figure it out.

The Republican strategy to block clean DHS funding legislation was waiting on the outcome of this lawsuit filed by 26 states against the president’s executive actions.

Now that the Court’s first ruling is against the administration, Congressional Republicans can ask why Democrats would support an unconstitutional action by the president. (Even though the question currently at hand is one of the plaintiff’s standing, not constitutionality.)

In the short term, this strategy makes sense.

In the long term (say, three weeks), the strategy weakens

Because, Republican leadership still faces two choices: pass a clean DHS funding bill (with significant Democratic support) or pass a short term funding bill (only to rinse and repeat the entire conversation a few months later).

First of all, public opinion is not on the side of Republicans.

Linda Chavez wrote in the NY Post, “Americans favor the president’s action by large margins according to most recent polls, from a low of 52 percent in a January poll by NBC News/Wall Street Journal to a high of 73 percent in a February poll taken by Public Religion Research Institute.”

Second, the legal process will drag on.

The Department of Justice will appeal the ruling and request rapid processing. And, the Circuit court may very well issue a stay of the injunction. Either way, the case will wind its way through the system for the next few months and Latino voters will become increasingly aware Republicans are working to block their road to legalization.

(Trust me. The “this is about the constitution, not immigration” message is not catching fire in Spanish language press.)

Third, and most importantly, Republicans have no constructive alternative.

Current legislative efforts in the House are party-line enforcement only vehicles. In addition to border security legislation already in the pipeline, interior enforcement and mandatory e-verify are topics of current committee hearings – with legislation on both in the wings.

The fact is that conservatives in favor of immigration reform have no legislative alternative other than enforcement.

I imagine the 26 House Republicans who voted against the Blackburn amendment to scupper the original DACA are getting more frustrated by the day.

I’m not about to say they are going to jump ship. But, an enforcement only approach only serves to further poison the environment making it more difficult for Republicans to move constructive legislation.

So, after DHS is funded, the legal process will wind on, and the question to Republicans will be, “Now what?”

No credible strategy to answer that question now, as far as I can tell.

Follow-up:

A few good articles on the morning after…
New York Times — http://nyti.ms/1E1HPyx
Politico — http://nyti.ms/1E1HPyx

Center for American Progress take: http://bit.ly/1L6tC3u

Keep an eye on ACLU, American Immigration Council and National Immigration Law Center for smart analyses as the day goes on.