House Republicans are close to launching a strike against President Obama's immigration executive action, a move that could set up a veto fight between a GOP Congress and the Democratic White House, and raise the specter of a Department of Homeland Security shutdown.
House Appropriations Chairman Harold Rogers said the likeliest scenario is to move a spending bill funding DHS that has already been negotiated among House and Senate appropriators. The bipartisan bill would be released Friday and come to the floor as early as next week, with a separate authorizing amendment that would restrict the agency from using funds to enact the president's action. That amendment could resemble one Rep. Mick Mulvaney offered last year.
But there is a competing school of thought among some members, who want to add language to the base text of the DHS spending bill choking off money to implement Obama's order. Doing so would send a symbolic message that it is an integral part of the bill, avoid the appearance of procedural hijinks, and make the vote quicker by avoiding protracted debate on one or more amendments. There is also trepidation among some Republicans that conservatives would vote for the amendment but leave leadership in the lurch by voting against the underlying bill.
The move would undercut appropriators, who have been asserting since last year that such a maneuver is procedurally impossible. Though meetings are ongoing and GOP leaders are set to vet their plans with members at a 10:30 am GOP Conference gathering Friday, Rogers gave reporters a broad outline Thursday of the mechanism to defund U.S. Citizenship and Immigration Services—the agency tasked with implementing Obama's executive order.
"Look to see an amendment that would change the basic law in order to give the Congress jurisdiction of the fees," Rogers said. "How the details of that are put together are still under discussion."
Whichever path the House takes, passage of the measure would bring Republicans one step closer to a confrontation with Obama over his immigration order and increase the possibility that DHS will run out of money at the end of February.
Some Republicans want to move cautiously so as not to seem as if they are endangering national security, particularly in the wake of a devastating terrorist attack in Paris on Wednesday.
"I think it's going to be risky. They've got to find a way to do it and they've got to do it targeted," said Rep. Peter King, the former Homeland Security Committee chairman. "I don't want to have to juxtapose 12 people being massacred in Paris with 'Republicans cut security funding.'"
Rogers and Homeland Security Committee Chairman Michael McCaul have been communicating throughout the process, and they spent much of Wednesday during House votes talking in the chamber.
Despite the assertion by some conservative Republicans that Congress can move without an authorizing bill, McCaul said he is in lockstep with Rogers in the opinion that a law change, not simply an appropriations rider, is needed. Normally an authorizing bill cannot be added to an appropriations bill on the House floor, but the Rules Committee could make the procedure in order.
"I believe you need to change the law. It needs an authorization, and that's what we intend to do," McCaul said. "It's not an appropriated agency, it's fee-generated. So you have to change the law so the fees can't be used for the executive action."
That position is buoyed by a memo prepared for House Rules Committee Chairman Pete Sessions from the Congressional Research Service, in which the nonpartisan research group noted that prohibiting USCIS from spending money for certain purposes was "within Congress's constitutional authority to legislate."
Adding the measure as an amendment offers Republicans an ancillary benefit: It would force Democrats into an up-or-down vote on whether to uphold the president's executive action, and potentially even peel off some Democrats, making it harder for the president to argue that it is a purely political move if he is faced with a chance to veto the bill.
Republicans believe that because the underlying DHS bill was negotiated in a bipartisan manner, it will make it more difficult for Democrats to object, even with the amendment targeting the president. In short, they can say the Democrats are risking national security to protect an action the GOP sees as unconstitutional.
But Rep. David Price, the ranking Democrat on the Homeland Security Appropriations Subcommittee, said that although he has not seen the text of what Republicans hope to add, he thinks Democrats will roundly reject it.
"They're going to add, I think, some highly punitive, vindictive—whatever word you want to use—elements, and I just think that's going to make the bill a nonstarter for people who, not just Democrats, but anybody who favors a kind of balanced immigration policy," Price said. "I'm apprehensive about it, particularly because we have a good appropriations bill, we have an important department here, and we're already doing the department damage."
In the last Congress, rank-and-file members called for the House to immediately move to halt Obama's unilateral action, which provides temporary work permits and deportation deferrals to millions of undocumented immigrants. But because USCIS is funded by user fees it collects rather than direct appropriations by Congress, appropriators said they could not direct how the agency spends its money. Leadership decided on a consolation prize: funding DHS through Feb. 27, giving Congress time to revisit the issue this year.
The House's impending action must walk a fine line between quelling conservative members and netting enough votes to pass the Senate. That is why leaders want to move so early. On Wednesday, House and Senate Republicans will head to Hershey, Pa., for a rare joint retreat where they can game out the rest of the details. But if in fact the Senate has to amend the plan in order to pass it with Democratic support, the House has time to act and avert a cliff.
House Majority Leader Kevin McCarthy spent more than an hour Wednesday night huddling with a broad group of GOP members, many of whom have proposed their own plans to rebut the president, such as Reps. Ted Poe, Ron DeSantis, and Steve King.
"I think that Leader McCarthy is conducting a couple of excellent meetings that really were designed to hear from the voices of the people that are most engaged in this issue," said King, who has been a noted anti-illegal immigration voice in the GOP Conference.
If political wrangling leads to a department-wide shutdown, it's likely the majority of DHS employees would still go to work. During the October 2013 shutdown, an estimated 85 percent of the department's 231,000-plus workers continued their jobs. And fee-funded USCIS would be largely unaffected.
This article is from the archive of our partner National Journal.
Daniel Newhauser is a staff correspondent for National Journal, where he primarily covers the House of Representatives. He was formerly a House leadership reporter for Roll Call, where he started as an intern in 2010 and quickly earned a slot as a beat reporter.
A native of San Antonio, Texas, Newhauser traveled further West to study journalism at Arizona State University's Walter Cronkite School of Journalism and Mass Communication and write for newspapers including the East Valley Tribune and the Green Valley News & Sun.