This article is from the archive of our partner National Journal

A federal judge's stay of President Obama's executive action on immigration could give congressional Republicans a lifeline to avoid a partial shutdown of the Homeland Security Department. But it's not clear yet that they'll take it.

With funding set to lapse at the end of the month, and a House-passed bill stalled in the Senate over provisions rolling back Obama's executive action, some Capitol Hill sources began speculating privately that the temporary injunction could give House and Senate leaders cover to pass a clean DHS funding bill—either one that covers the remainder of the fiscal year, as Democrats have demanded, or a short-term measure that would set up another looming deadline.

 

It's unclear if Republican leaders want to seize the opportunity—or indeed if their rank-and-file will allow it—but with members away from Washington for the week, it was clear Tuesday that the standoff will continue until at least next week.

By allowing the courts to work their will, the thinking goes, leadership could avoid consternation from conservatives in their aisles, while earning enough Democratic votes to fund the department with a clean spending bill.

But House and Senate leadership on Tuesday forecast that they would continue with their plan as usual. House Speaker John Boehner and Senate Majority Leader Mitch McConnell doubled down, joining conservative members in both chambers in using the judge's decision to put more pressure on Senate Democrats to capitulate.

"We will continue to follow the case as it moves through the legal process," Boehner said in a statement. "Hopefully, Senate Democrats who claim to oppose this executive overreach will now let the Senate begin debate on a bill to fund the Homeland Security Department."

The added pressure, Republicans hope, will force the hands of the seven Senate Democrats who said last year that they disagreed with the president's action. That theory will be tested as early as next week, when the Senate plans to hold a fourth vote on the House measure.

"Senate Democrats—especially those who've voiced opposition to the president's executive overreach—should end their partisan filibuster of Department of Homeland Security funding," Senate Majority Leader Mitch McConnell said in a statement.

But Sen. Chuck Schumer suggested the ruling hadn't done much to change the calculus for Senate Democrats.

"This procedural ruling, in our opinion, is very unlikely to be upheld, but regardless of the outcome Democrats remain united in our belief that funding for the Department of Homeland Security should not be used as a ransom by Republicans, period," Schumer said.

Meanwhile, Republican state delegations have been trying to influence their home-state Democratic senators. Republican House members in Indiana and Missouri wrote letters to Sens. Joe Donnelly and Claire McCaskill, respectively, urging them to end the blockade of the DHS bill. But Democrats have continued to hold strong on the issue and there was little indication Tuesday morning that any red-state members would abandon the rest of their conference.

A McCaskill spokeswoman responded: "Republicans are fully in charge of Congress, and amid very real terrorist threats, they should pass a clean bill to fully fund our Homeland Security, free of controversial policy riders, and then should finally debate immigration reform."

McConnell will huddle with his own membership next Tuesday, just three days before DHS's funding expires. And on Wednesday, House Republicans will hold an all-members meeting, during which the topic of how to proceed on DHS funding is sure to come up. House aides cautioned that no final decisions about how to move forward are likely to be made before leaders have a chance to speak with their members.

If Democrats continue their refusal to vote for a bill undercutting Obama's executive action, Republicans could remain equally unflinching, and the result would be a funding lapse for DHS (although more than 80 percent of the agency would remain operational because it is considered essential). But there are signs that it is the GOP who would lose the most politically in such a standoff. A CNN/ORC poll released Tuesday found that 53 percent of Americans polled would blame Republicans in Congress if the department shuts down, while just 30 percent would blame the president.

Given those numbers, Republicans could call Monday's decision in Texas a victory and pass a clean funding bill to keep the Homeland Security Department running at full capacity. But, given the party's victories in 2014 despite a full government shutdown one year earlier, many members continue to believe that a short-term DHS shutdown would not harm them politically in the long-run, which could make a clean bill a tough sell in the GOP Conference. Outside groups, such as Heritage Action and NumbersUSA, meanwhile, keep urging members to stand firm, noting that the court decision only reinforces their constitutional high ground.

As they discuss strategy, Republican leaders will have to keep an eye on the courts. The Obama administration is already pursuing an appeal, which could overturn the judge's decision, leaving GOP members empty-handed. That uncertainty over the judge's stay has some members cautioning that Republicans should not cede their leverage over DHS funding until an injunction is upheld in an appeals court.

This article is from the archive of our partner National Journal.

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