To increase the odds that the Supreme Court will eventually end President Obama’s most recent deferred deportation program, Republican state officials based their challenge in Texas, where they knew they were likely to draw sympathetic conservative federal judges.
They hit the jackpot with Andrew Hanen, a district court judge who has enjoined the program, pending a ruling on the merits of the case. Hanen's decision ties the administration’s hands just as it was preparing to accept deferred action applications, ostensibly an outright victory for the GOP. But like so many lottery winners, Republicans are already overspending their way to ruin.
According to a CNN report, “Republicans say the ruling has united and emboldened them to stand firmly by their strategy of tying funding for the homeland security agency to efforts to kill Obama's executive action, and urged Senate Democrats who have blocked those efforts to heed the ruling.”
A shrewder Republican party would use the ruling as an offramp—fund the Department of Homeland Security, leave the fate of the president’s policy in the hands of the judiciary. Instead, they’re behaving as if this unusually partisan judicial intervention vindicates a political strategy that ends with Republicans footing the bill for shutting down DHS.
GOP leaders could of course come around in the next 10 days, before the department’s funding lapses. But both House and Senate Republicans have committed to inflexible positions, making a shutdown all but certain unless one body or the other reverses itself.
Even if the injunction were guaranteed to hold for many months, the challenge itself only concerns Obama’s expansion of a smaller program for "Dreamers," immigrants who arrived in the U.S. as children, and other recent actions. The 2012 deferred action program for childhood arrivals (DACA) is unthreatened for now. That won’t satisfy rank and file GOP hardliners, who have conditioned DHS funding on ending both policies.
But even if the legal challenge ends up bailing out Republicans this time around, the dynamics that brought the party to this brink will persist. The DHS funding impasse is symptomatic of tendencies in the Republican congressional majorities that presage more shutdown threats, debt limit fights, and other high-wire acts. These are precisely the kinds of reckless legislative politics party leaders hoped to avoid.
Writing at Forbes, budget veteran Stan Collender argues that the incompatible imperatives facing Republican congressmen and Republican senators has transformed an executive-legislative branch showdown into an intraparty war. That Democrats can filibuster just about every volley House Republicans deliver to the Senate exacerbates these tensions.
But the nub of the problem is that Senate Republicans and House Republicans now have nominally equal power on Capitol Hill. The question of whether Republicans win or lose budget fights no longer turns entirely on whether they can force their collective will on Senate Minority Leader Harry Reid. It now also turns on whether House Speaker John Boehner or Senate Majority Leader Mitch McConnell has greater mettle. Any deadline-driven act of Congress, whether it’s DHS funding or a debt limit increase, can only be advanced without condition if one of them blinks first, or if they surrender simultaneously.
In the current impasse, neither Boehner nor McConnell wants to carry the burden on his own by allowing a clean DHS spending bill to pass his chamber. That’s why if this standoff ends, it likely ends with a coordinated retreat, laid at the feet of six Democratic senators who oppose Obama’s actions yet are helping to sustain the filibuster.
But there’s no reason to believe the same plot won’t unfold when conservatives decide they want to use another must-pass vehicle to run down a different Obama policy. And next time, an overzealous conservative judge is unlikely to stumble in with the pretense Republicans need to save themselves from themselves.