Mitch McConnell on Obama's executive amnesty: We're not shutting down the government

Three theories about this kicking around on Twitter as I’m writing.

“I’ve been very disturbed about the way the president has proceeded in the wake of the election,” Sen. Mitch McConnell (R-Ky.) said Thursday after being elected majority leader in the next Congress…

Still, McConnell reiterated that there will be no government shutdowns or debt defaults while the GOP is in charge, despite talk among some Republicans of seeking to stop Obama’s immigration action through the appropriations process.

“We’re not shutting the government down or threatening to default on the national debt,” McConnell said…

“We’d like for the president to recognize the reality that he has the government that he has, not the government that he wishes he had,” McConnell said.

Theory one comes from the ever-pessimistic Drew McCoy, unofficial leader of the “let it burn” movement: McConnell’s caving again. Obama’s about to drop an unconstitutional amnesty bomb on America and all the GOP establishment can do is stammer reassurances that they won’t shut down nine percent of the government for five days, or whatever the next standoff would look like. It’s a preemptive sellout by a party that’s terrified of further offending Latino voters before the next presidential election, not to mention the wider shutdown-hating public. A plausible interpretation. But is it true?

Theory two comes from Gabe Malor: This is semantics, essentially. Don’t beat up McConnell just because he’s better at messaging than the average Republican.

If the shutdown happens, McConnell’s top priority is convincing the public that it’s Obama’s fault, not the GOP’s. Which, of course, it is: Obama’s the one forcing this constitutional crisis with a dubious amnesty move and Democrats are the ones who benefit politically from a shutdown, thanks to the media’s unbreakable narrative that the small(er)-government party must necessarily favor shutdowns more than the big(ger)-government party does. Even if McConnell can’t win the messaging battle with Obama, he at least wants to win the battle with Cruz. If he can convince the public that it’s the small coterie of tea partiers who are to blame rather than Senate Republicans more generally, he can at least limit the damage to the broader GOP.

Theory three, via my pal Karl: You can punish Obama by defunding parts of the government without forcing a shutdown by defunding the entire government, you know. In fact, that’s precisely what some Republicans have planned.

Sessions is urging Republicans to include specific language in their nine-month omnibus to bar federal law enforcement officials from spending any money on processing applications, benefits or work permits for illegal immigrants.

If Democrats balk, he argues Republicans should only agree to a short-term funding bill and then include the language in another funding measure after they take over the Senate in January.

Mulvaney said he’s been discussing various immigration options with conservative colleagues in a flurry of phone calls before and after the elections. One idea is to simply pass a series of short-term funding measures, so Republicans could vote to block funding for Obama’s immigration action once he takes that step. Another is to pass a longer-term omnibus for all agencies except the Homeland Security Department, which would carry out the president’s immigration order. Instead, the DHS would be funded on a short-term basis, giving Republicans a chance to exercise its power of the purse.

They need to pass a bill funding the government by December 11th. Under Sessions’s and Mulvaney’s plans, they should go right ahead and do that even if Obama issues his amnesty order. That would avert a shutdown. Then, next year, when it’s time to appropriate money for various federal agencies, the GOP strikes back: Every department gets money except the ones charged with enforcing Obama’s amnesty. Maybe that means ICE specifically or maybe it means the entire Department of Homeland Security (although I’m thinking Boehner and McConnell would prefer to avoid the headline “REPUBLICANS DEFUND NATIONAL SECURITY.”) For what it’s worth, a staffer on the Senate Budget Committee e-mailed me last week after I wondered in this post whether Obama might be able to find the money needed for his amnesty in some other part of the executive branch. There’s a lot of dough floating around there, after all. Gotta be an executive slush fund somewhere that can pay for this! Not so, said my source:

The executive has certain limited transfer / reprogramming authority, but it depends how far the money is being moved. If it’s across accounts, that is a reprogramming and it requires the approval of the Appropriations Committees (not sure if just the chairmen have to sign off, or if all 4 chairmen and ranking members must be in agreement). If the money is just being moved within one budget account, it can be transferred without requiring such approval.
That being said, language could be drafted that makes it impossible or nearly impossible for them to get around. We could say, for example, no money can be spent paying the salary of anyone who is processing DACA applications. Salaries are a good way to insert approps riders.
If the Administration persists and spends money that Congress has not authorized it to spend, then you’re in Antideficiency Act territory. Employees found in violation of the Antideficiency Act can be subject to penalties up to and including imprisonment, so that is a good deterrent!

He’s not saying they would do this, he emphasized, just that they could do this if they had to. The question, I guess, is how far Obama’s willing to go to support his amnesty. If he’s willing to nuke Congress’s power over immigration, wouldn’t he be willing to appropriate money that isn’t really available? If he does and the GOP sues, how long is that case tied up in court while the amnesty plays out? And how much political flak from pro-amnesty groups are Boehner and McConnell willing to take in the name of fighting this when they’re already worried about Latinos tipping the 2016 election to Democrats? Just because there’s a way to avoid a shutdown doesn’t mean there’s a way to avoid a standoff.

Exit question: If they cave on spending, what about blocking Loretta Lynch as new AG over this instead? Even McCain’s up for that unless she sides with the GOP against O on amnesty, the likelihood of which is exactly zero.