The lame duck Congress and the lame duck President are surprisingly busy these days. On Tuesday, they made news on two different issues.

Keystone XL: Senator Mary Landrieu’s effort to pass a bill authorizing the pipeline—and, in the process, help save her long-shot bid to win next month’s runoff election in Louisiana—came up one vote short. The bill had a majority, thanks to several Democrats who broke ranks to vote with the Republicans. But this is the Senate, where filibusters mean it takes 60 members, not fifty-plus-one, to move legislation. 

The Keystone drama isn’t going away. Republicans will take up the measure again when they take control of the Senate in January, and when they do the bill will almost surely pass. At that point, President Obama will probably, though not definitely, veto it. Even if he doesn’t, the Nebraska Supreme Court could block construction because of a jurisdictional issue.

But, as Rebecca Leber keeps reminding us, the pipeline looks like less and less profitable enterprise anyway, thanks to falling oil prices and the relatively high price of alternatives to Keystone. Climate activists might actually carry the day, preventing or at least delaying development of the Canadian tar sands—although the impact on climate change would be modest and arguably more important for its symbolism.

Immigration: President Obama hasn’t said exactly when he’ll issue his long-awaited issue on deportations—or what precisely it will entail. But leaks from people in the know, like Senate Majority Leader Harry Reid, suggest that the order is likely to come this week and likely to be relatively big.

The latest news, at least as of Tuesday evening, is a report from Heidi Przbyla and Mike Dorning of Bloomberg News. They say the order is likely to have three major features: A temporary reprieve of deportations for the undocumented parents of legal immigrants, an expansion of the Deferred Action for Childhood Arrivals that grants similar reprieves to people brought here as young children, and more work permits for immigrants who have specialized high-tech skills. According to the article, Obama is not planning to stop deportations of undocumented adults who are parents of children brought here illegally.

The sources for the article are “people familiar with the proposal,” which means it could be Administration officials floating a trial balloon or allies leaking it for their own purposes. And the actual order might not look quite like the report. But the White House has been signaling that the President wants to do something big and such an order would likely encompass 4 to 5 million people (although, as Dara Lind of Vox notes, some of them are already eligible for protection from deportation).

Critics will question the legality of such a move, but the case for broad presidential authority here seems strong, as numerous legal experts spanning the ideological and partisans spectrum have been pointing out. Democratic norms are another matter entirely, as Danny Vinik has noted. Would protecting such a large portion of the undocumented population from deportation, even temporarily, so soon after the midterms represent an unjust power grab by the president?

Of course, the only way to punish violations of democratic norms is with political retribution. And the Administration could present such a plan as designed to prevent family breakup—a cause that might play pretty well with the public.

Jonathan Cohn


Articles worth reading

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Dirty business: Ben Smith describes a dinner he attended in which an Uber executive suggested his company should “dig up dirt” on critical journalists. (Buzzfeed)

Innocent until proven guilty?  Jenée Desmond-Harris tells the story of how the Innocence Project, a group known for freeing wrongfully convicted prisoners, might have had a role in the wrongful jailing of Alstory Simon. (Vox)

No Independence Day: Jon Walker says Jonathan Gruber’s paid consultancy for the Department of Health and Human Services meant he could not speak impartially about the Affordable Care Act. (FireDogLake)

Interview of the day. Bill Keller and Tim Golden from the recently launched Marshall Project interview Eric Holder on a wide-ranging list of topics from drug laws to the death sentence.

Stories we’re watching

We’re waiting for that immigration order.

At QED

Rebecca Leber catches Mitch McConnell, who like many Republicans has dodged climate questions by saying he’s “not a scientist,” citing science during his arguments in favor of Keystone XL. Brian Beutler explains why conservatives will keep fighting Obamacare. Simon Lazarus writes about the lawsuit challenging Obamacare’s subsidies: Liberals, he says, should stop arguing that the law has a “typo.” It’s perfectly clear and it authorizes the government to provide tax credits in all states.

Clips compiled by Claire Groden and Naomi Shavin