Immigration Tag

House Republicans came out swinging, passed a killer DHS appropriations bill -- one that hammered much needed immigration enforcement, and acted as though they were ready for an immigration battle royal. For one brief, joyous moment, it seemed as though conservatives finally had the Congress they'd long desired. Boy was that short-lived. What began as a bill that held sought to beef up immigration enforcement (an area where this administration has been far too lax), ended as a 'clean' funding bill with no strings attached. Despite holding majorities in both houses, Republicans received nothing they wanted. Friday morning, Boehner said he would, "not be blackmailed by Senate Democrats." Senate Democrats perpetually filibustered the House bill, disallowing debate. By Friday afternoon, Senate Republicans had split the funding bill in two -- one, a 'clean' funding bill, and the other, a bill that addressed the president's executive amnesty and other enforcement related items. The 'clean' funding bill passed in the Senate. The House tried again, but Senate Democrats refused to go to conference to discuss differences in the House and Senate bills, and so the House found itself in a nasty predicament. By passing a 'clean' funding bill, Senate Republicans gave the White House and Democrats exactly what they wanted, leaving House Republicans without any leverage, any backup plan, and absolutely no way around a 'clean' funding bill. Yet in spite of the Senate sell out, there appeared to be hope. As late as Monday evening, prior to the House's passage of Tuesday's 'clean' funding bill, Speaker Boehner and House leadership were promising to hold the line and fight. What went so horribly wrong?

Which means Congress gets to have this same fight all over again next week. Joy. The Senate passed a clean funding bill late yesterday afternoon, placing efforts to combat President Obama's executive overreach in a separate piece of legislation. Last night it looked as though a DHS shutdown was imminent. Democratic lawmakers in the House were actively whipping votes against the three week stopgap appropriations bill, resulting in the bill's failure---even though the White House indicated President Obama would've signed the bill to prevent an agency shutdown. The Washington Post reported (emphasis added):

The House passed a measure earlier Friday afternoon to go to conference with the Senate to hash out the differences between their long-term bills. No Democrats voted for it. Senate Democrats oppose a conference. Senate Democratic aides acknowledged that the bill would probably have passed their chamber if it had cleared the House.

Just two hours before the shutdown deadline, Democratic hold outs caved and agreed to pass a temporary funding bill that will only fund the agency for one week. According to USA Today:

House Minority Leader Nancy Pelosi, D-Calif., rallied Democrats to support the one-week extension before funding expired. She said that voting for the seven-day measure would put Democrats on a path toward possible passage next week of a $40 billion spending bill that would fund the agency through the end of September.

Yesterday the U.S. government filed an Emergency motion to stay the U.S. District Court's temporary injunction putting Obama's immigration executive action on hold. In its Emergency Motion, the Feds threatened that if U.S. District Court Judge Andrew S. Hanen did not grant the stay by the close of business on Wednesday, February 25, the Feds would seek an emergency stay from the 5th Circuit Court of Appeals. The plaintiff States argued that that was too short of a time for them to respond, considering the Feds took a week to bring the Emergency motion. Judge Hanen just ruled that the States had until Monday, March 2, to respond. (Order below). [Update: Changed to March 3 - see Amended Order below.] Will the Feds now run to the Appeals Court? Or wait until Judge Hanen rules next week? Normally, a litigant has to request relief from the trial court first.  I'm not sure, as I write, whether a modest delay in the trial court would cause the 5th Circuit to refuse to hear an emergency motion until the trial court rules. As of this writing, there has been no stay motion filed in the 5th Circuit according to the electronic docket.)

The federal government has filed in U.S. District Court an Emergency Expedited Motion for a Stay of the Temporary Injunction putting a stop to Obama's executive immigration action. The successful plaintiff states have filed a letter opposing expedited treatment. If the District Court denies the stay, or does not rule by the close of business on Wednesday, February 26, the feds will go to the 5th Circuit Court of Appeals seeking emergency relief. Both documents are embedded below. Discussion and analysis to follow. Here's part of the Intro to the government's motion and brief:

A stay pending appeal is necessary to ensure that the Department of Homeland Security (“DHS” or “Department”) is able to most effectively protect national security, public safety, and the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department’s comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources. Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if Defendants ultimately prevail on that appeal....

Well, that was predictable. Yesterday, Judicial Watch revealed that in spite of an injunction barring implementation, the Obama Administration is preparing for a full-scale rollout of Obama's controversial plans for immigration executive amnesty. Nobody expected the Administration to take the injunction lying down---amnesty's best chance for survival is a friendly judge---so the continued preparation was less of a scandal and more of continuing proof of Obama's confidence in his ability to shove these terrible policies down our throats, one way or another. Similarly, yesterday's announcement that the White House will ask for an emergency order authorizing the amnesty programs' rollout was no shock. More via Politico:

With pressure building from immigrant rights activists for swift action to overturn the injunction a federal judge in Texas issued Monday night, White House press secretary Josh Earnest told reporters that the administration decided to seek a stay that could lift the order. The action could buy time as an appeal Obama promised plays out. At a daily briefing, Earnest said Department of Justice lawyers will file legal papers by “Monday at the latest.” But pending further legal developments, the Department of Homeland Security’s plans to start taking applications this week for an expanded program for immigrants who arrived in the U.S. illegally as children remain suspended indefinitely. “Once we have taken some additional steps through this legal process, we may be in a position to give you an update,” Earnest added.

Earlier this week a federal court in Texas issued a temporary injunctive order preventing implementation of Obama's immigration executive action. Following the order, the Obama Administration made it appear as though they were prepared to put their agenda on hold and take the fight over executive power to the courts. I say "appear" because, in spite of the injunction, DHS is still making moves to award multi-million dollar contracts to the firms tasked with handling the processing of millions of illegal immigrants' requests for amnesty. An anonymous source has described the deal as being rushed through at a "full throttle pace," and a Request for Proposal filed by the USCIS details how the agency expects to pull off its latest bait-and-switch. Judicial Watch has the details:

The RFP estimates that the population of potential requesters for the president’s deferred action will be “approximately four million people” and that USCIS anticipates the initial filing of “approximately five to six million forms” related to the amnesty order which also covers the illegal immigrant parents of U.S. citizens and lawful residents. The work is to begin in mid-March, the document reveals, and the contractor will operate out of a new center in Arlington, Virginia because there is no current facility with available space or staff to accommodate the “additional volume of work.” The center will be dedicated to processing deferred action for illegal immigrant parents of citizens, employment authorization and correspondence management. The pricing spreadsheets are astounding and list tens of thousands of work hours—for tasks such as program management, file operations and maintenance as well as Freedom of Information Act (FOIA) scanning—that will undoubtedly end up costing American taxpayers enormous sums. The contractor that lands this monstrous government deal must also be able to respond on short notice to growth in volume due to urgent events and requirements. “The growth is more than normal overtime and cannot be completed with overtime,” the government documents state.

You gotta love The Imperial City -- everyone is an obstructionist and no one is ever responsible. In this particular tale of drama and woe, the previous Congress passed appropriations bills lasting one fiscal year for every major government entity save the Department of Homeland Security. The idea being that once the newly elected Republican majorities took their seats in January, they'd have a strategic advantage in pushing reforms and curbing President Obama's executive immigration overreach as conditions for continued agency funding. Currently, DHS is only funded through the end of February. The House passed an appropriations bill that was heavy on the enforcement (well done, House Republicans). Senate Democrats keep filibustering the House Bill so the Senate hasn't even had a chance to duke it out. Back at the House, Speaker Boehner told Senate Democrats to "get off their asses" and stop obstructing (there's that magic word again) the bill the House passed. All the while, Senate Democrats continue to cry "unfair!" Meanwhile, down in Texas, a judge was all, "yeah, no Obama." Meaning that the fit the Senate Democrats are pitching is over an Executive Order that cannot be legally implemented. Or as Senator Sessions put it, "Congress cannot fund the very action which dissolves its own powers." And DHS is tweeting on their own behalf:

Without a budget, nearly 60,000 dedicated @CustomsBorder employees wouldn’t get a paycheck. #FundDHS http://t.co/JQkIu6dHWk

— Homeland Security (@DHSgov) February 12, 2015

Which brings us to now.

President Obama's executive amnesty is now in the hands of the courts. Earlier this week we reported that a federal court had sided with a 26 state coalition against Obama's plans for sweeping immigration reform. The court issued a temporary injunctive order barring the President from implementing his immigration executive action---and almost immediately upon hearing the news, we set up a 5th Circuit watch, waiting for the Administration to file a stay on the ruling. It never happened. More from the AP:

"We're not going to disregard this federal court ruling," Obama said, but he added that administration officials would continue to prepare to roll out the program. "I think the law is on our side and history is on our side," he said. On Capitol Hill, the Homeland Security Department stood 10 days away from losing funding, but Hanen's ruling made a compromise on that dispute look more distant than ever. Republicans are blocking funding for the agency unless Democrats agree to cancel Obama's immigration orders, and they seized on the ruling as validation for their position. "Congress must reassert its waning power. We must re-establish the constitutional principle that the people's representatives control the purse," said Sen. Jeff Sessions of Alabama, a leading immigration hardliner. Yet Senate Democrats, who have been blocking a House-passed bill that would fund the department but also undo Obama's actions, said the ruling from Hanen did nothing to budge them. "Democrats remain united in our belief that funding for the Department of Homeland Security should not be used as a ransom by Republicans, period," said Chuck Schumer of New York.

In a decision which is to have a profound impact on both the immigration debate and the currently stalled funding of the Department of Homeland Security, a federal court judge in Texas has issued a Temporary Restraining Injunctive Order preventing implementation of Obama's Immigration executive action. The Order and 123-page Opinion are embedded in full below. From a political perspective, if Obama is enjoined from enforcing his immigration executive action, how can Congress fund an illegal act? Or if it were funded, thereby relieving the current continuing resolution stalemate, Obama could not enforce it. Either way, this may provide Congress a way out of the jam just days before the funding deadline. What this allows Republicans to do, is pass a 30 day spending bill without any limitations on the argument that the immigration plan cannot be acted upon anyway, and wait and see how the courts rule. IF the courts refuse to put the injunction on hold, or if the courts uphold the injunction on the merits, then there is no need to worry about defunding the executive action. If an appeals court reverses, then the Republican leadership can say that it has already been upheld as lawful so there is no legal basis for the claim it is unconstitutional. This could be a victory at least to get over the current impasse, although it may not be a long term solution. The case involves 26 states (originally 17) led by Texas. Here is part of the TRO:

The United States of America, its departments, agencies, officers, agents and employees and Jeh Johnson, Secretary of the Department of Homeland Security; R. Gil Kerlikowske, Commissioner of United States Customs and Border Protection; Ronald D. Vitiello, Deputy Chief of United States Border Patrol, United States Customs and Border Protection; Thomas S. Winkowski, Acting Director of United States Immigration and Customs Enforcement; and Leon Rodriguez, Director of United States Citizenship and Immigration Services are hereby enjoined from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAP A") program as set out in the Secretary of Homeland Security Jeh Johnson's memorandum dated November 20, 2014 ("DAPA memorandum"), pending a final resolution of the merits of this case or until a further order of this Court, the United States Court of Appeals for the Fifth Circuit or the United States Supreme Court.

The Court frames the issue in the case as follows:

The ultimate question before the Court is: Do the laws of the United States, including the Constitution, give the Secretary of Homeland Security the power to take the action at issue in this case? [Opinion, at 4]

It took the court over 100 pages to get to the answer: No.