Can Republicans roll back Obama's executive order? It's hard but not impossible

There is nothing hindering Republicans from pursuing a response to Obama’s executive order. But they need non-filibusterable, must-pass legislation as leverage to force the president to accept their terms.

Carolyn Kaster/AP
Sen. John Thune (R) of South Dakota (l.) and Senate minority whip John Cornyn of Texas (r.) listen as Senate minority leader Mitch McConnell (R) of Kentucky speaks during a news conference on Capitol Hill in Washington, on Nov. 18, 2014.

Republicans have rallied behind the idea of defunding President Obama’s executive order on immigration either through the omnibus or a rescission – a bill passed after an appropriations bill. However, this plan ran into some speed bumps. As Jennifer Hing, House Appropriations Committee spokesperson, points out, Citizen and Immigration Services (CIS), the agency that processes immigration petitions and deportations, is funded through application fees. That means its funding is not subject to annual appropriations bills. And as a result, there is nothing Congress can do to defund the executive order.

However, this talking point misleads many into thinking that Congress is helpless, which is categorically wrong. Republicans could pursue several different avenues. They could attach legislative language onto an omnibus or other appropriations bill. This is a routine process that occurs basically every time an appropriations bill is passed. (See here under “Legislating on Appropriations.”) Even though Congress has a rule prohibiting legislative language in appropriations bills, they nonetheless ignore it all the time.

There are other ways to respond as well. The Budget Committee could grease the wheels and push the bill through the reconciliation process. Legislatively, some piece of this bill would have to do with revenue (fees), though not all necessary provisions would likely be able to pass under reconciliation. Finally, the most obvious solution is to pass a bill. Congress could simply prevent CIS from executing the order.

There is a catch, however. Any process the House could use would be subject to a 60-vote threshold in the Senate. Either the Senate would have to agree to waive the rule against legislating on appropriations, waive the Senate Byrd rule, or overcome a filibuster. That is a difficult but not impossible task. Republicans are hesitant to take this path because in order to get 60 votes they would have to pull back on reversing the executive order.

There is a deeper, underlying point that uncovers Republicans’ strategic motivations. This is not a case of inability. This is a case of inaction. There is nothing procedurally hindering Republicans from pursuing a response to Obama’s executive order. They are not held back by process. They are held back by strategy.

The real reason most Republicans do not like these options is there is no guarantee the bill they want to offer the president could get to his desk. There would be no grand showdown forcing Obama into the awkward situation of choosing between his executive order or funding the government.

In other words, without non-filibusterable, must-pass legislation, Republicans cannot force the president into accepting their terms by presenting him with catastrophic consequences if he doesn’t. And as a result, we see a lot of hyperbolic rhetoric without much motivation to back it up with legislative effort.

Joshua Huder publishes his Rule 22 blog at http://rule22.wordpress.com.

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