Will House Republicans censure the president over his unilateral immigration move? Will they ban him from delivering the State of the Union address?
As Congress returns Monday for its final two-week session of the year, Republicans livid over President Obama's executive actions must decide how to respond. Speaker John Boehner has vowed that the House GOP majority "will, in fact, act" to restrain what it sees as Obama's overreach, but he has given no indication of what move he favors. House Republican lawmakers will meet privately on Tuesday morning, shortly before the Judiciary Committee holds an initial hearing on Obama's new measures to protect as many as five million undocumented immigrants from deportation.
In the 10 days since the president announced the policy changes, Republican lawmakers and commentators have suggested that Congress counter with everything short of impeachment. One prominent conservative voice on immigration, Representative Raul Labrador of Idaho, said Republicans should formally censure the president, while Rich Lowry of National Review has said the House should withhold its annual invitation for the president to deliver the State of the Union address in the Capitol in January. Others favor more traditional forms of legislative confrontation, like trying to block funding of Obama's actions through the appropriations process.
Here's a look at the GOP's options, in order of most likely:
Take Obama to Court
House Republicans have already filed a lawsuit over Obama's implementation of the Affordable Care Act, and aides to the speaker have made clear that the House could move quickly to add the immigration issue to its list of legal grievances. Boehner and other party leaders have consistently argued that the directives amount to an unlawful usurpation of congressional authority, but some conservatives are lukewarm about a lawsuit on the grounds that it could take years to litigate in court. And because there isn't much precedent for one chamber of Congress suing the president, a judge could simply rule that the House isn't an aggrieved party and doesn't have the standing to bring a legal challenge.
Power of the Purse
A showdown over spending is the preferred response for many conservatives, who argue it is the avenue most clearly prescribed by the Constitution. Yet in practice, it may be difficult for Republicans to withhold funding for the implementation of Obama's executive action without risking a shutdown of the entire federal government that party leaders have ruled out. Congress must pass a spending bill by December 11, and one idea described by lawmakers on Monday would be to approve an omnibus appropriations bill covering the entire government with the exception of the agencies charged with enforcing the president's immigration order. Those departments would be kept on a short leash and have their funding extended only temporarily so that the new Republican Congress could confront the administration in 2015.
There are questions, however, over whether that strategy would work. The GOP chairman of the House Appropriations Committee, Hal Rogers of Kentucky, has said Congress cannot strip funding for the president's policy because immigration enforcement is funded by fees, not congressional appropriations. But conservatives have pointed to a new report by the Congressional Research Service asserting that lawmakers can block funding in other ways. "We can limit how that money is spent, even if it's fees," said Representative John Fleming, a Louisiana conservative. Republicans could still have a difficult time passing that package over Democratic opposition, and if Obama refused to sign it, a resulting government shutdown could backfire on Republicans.
Pass Immigration Reform
Obama has dared Republicans to respond to his executive actions by passing a permanent overhaul of immigration laws that he could sign, and lawmakers are increasingly talking about taking the president up on his challenge despite their anger. "Some people might be afraid of that, but every now and then you have to give the devil his due," Representative Tom Cole, an Oklahoma Republican and ally of the House leadership, said in a phone interview Monday.
Boehner has said for months he wants the House to act on immigration, and any bills Republicans would take up would be far different than the comprehensive legislation the Senate passed in 2013. The House measures would focus heavily on border and interior security, although they could also include provisions creating a guest-worker program and increasing the number of H1B visas, as in the Senate bill. Yet the speaker has warned that Obama's decision to act alone would ruin the chances for reform during his presidency, a view shared by the incoming Senate majority leader, Mitch McConnell. "He has so poisoned the well on this immigration issue now, I'm not sure whether there's a way forward or not," McConnell said last week in a radio interview on the Joe Elliot Show.
Even Obama's most ardent conservative congressional critics have avoided calling for his impeachment, but another formal reprimand has generated some discussion in the last week. "Number one, I think we should censure the president of the United States," Labrador said on CBS's Face the Nation after Obama's announcement. "I think it's unfortunate that he did this. I think we need to lay out clearly why this is unlawful."
Congress has voted just once to censure a president, when the Senate rebuked Andrew Jackson in 1834 over his veto of the re-charter of the Bank of the United States. (The Senate later expunged the censure from the record.) While the act would be purely symbolic, it would mean that a Republican Congress would have acted to formally repudiate each of the last two Democratic presidents, and it's an idea that's not expected to gain any traction with the leadership. "I think it would be useless," Fleming said.
Cancel the State of the Union Address
The Constitution mandates that the president give a report "on the state of the union," but it does not require him to do so in person, or in the Capitol. Until a century ago, presidents typically sent their reports in writing, and Rich Lowry, who edits the National Review, said last week Republican leaders should tell Obama he's "not welcome in our chamber" this year.
In short, this is not going to happen. Boehner is, above all, an institutionalist when it comes to the ceremonies and traditions of government, and he's not about to risk the political backlash that would follow a move so disrespecting of the president, no matter how angry his members are. "That's incredibly childish, peevish, and petty," Cole said, offering an opinion likely shared by the leadership. Obama will deliver a State of the Union address in January, but Republicans might sit on their hands a little more than usual.