Boehner on defunding DHS: Maybe we'll, uh, sue Obama over executive amnesty instead

And so the monthlong “cromnibus” charade, which was premised on the GOP exercising its power of the purse by shutting down Homeland Security if Obama refused to cave on amnesty, ends as we expected — with a punt.

Boehner told his conference at a closed-door meeting Tuesday morning that he has a team exploring the best options to challenge last year’s executive action, under which the Homeland Security Department will begin granting legal working status to millions of immigrants, according to sources in the room.

“Our team has been working on litigation. We are finalizing a plan to authorize litigation on this issue—one we believe gives us the best chance of success,” he said, according to a source in the room…

It is unclear whether a congressional lawsuit would also challenge the deferred action for childhood arrivals policy, which has already put off deportation for more than a half- million undocumented immigrants. The House would have to vote on a resolution authorizing legal action, and that could come in the form of its own lawsuit, or in the form of joining an existing suit challenging Obama’s actions.

I still can’t believe they passed a bill to try to appease conservatives that depended on them following through on something they explicitly refused to do. Remember? John Thune was blunt about this: Not only is the new Senate GOP majority not going to shut down the federal government, they’re not going to shut down any part of the federal government, DHS very much included. A shutdown would screw up the party’s effort to show voters that they’re a can-do, proactive, bill-passin’, compromise-forgin’ new breed of Republicans. But shutting down DHS (or the immigration agencies within DHS, specifically) was the only means left to them under the “cromnibus” of twisting Obama’s arm to rescind his amnesty order. They might as well have threatened to defund the Pentagon over executive amnesty too. How exactly is O’s arm being twisted when he knows full well that the GOP’s unwilling to carry out its threats?

So now we’re back to the House filing quixotic lawsuits to try to rein O in, a process that’s already required no fewer than three lead attorneys in the House’s case against the O-Care employer mandate. I’m less opposed to going this route than most righties, actually. The Supreme Court’s conservative majority is watching these Obama power grabs from afar and noticing that there’s little that Congress seems able to do to stop them. They’ve been pretty bold over the past few years in taking up cases challenging some of his key initiatives — the ObamaCare lawsuit, of course, the Halbig case, the NLRB recess appointments, and so on. I think there’s a nonzero chance that Scalia, Thomas, Alito, and one other justice will be willing to consider whether Obama’s executive amnesty is a bridge too far for separation of powers and a nonzero chance that they end up ruling against him. But … why do we need the House to sue O over executive amnesty when the states are already doing it? There’s a hearing in a federal district court in front of a judge who looks to be well disposed to the plaintiffs just three days from now. There are only two reasons why Boehner would feel obliged to file his own suit (or join the states’ suit), I think. One: He’s worried that the separation-of-powers issues in a state challenge won’t be fully ventilated unless the House joins in. Two: He’s desperate for some sort of consolation prize to offer conservatives when he and McConnell cave and fund DHS next month. Which do you suppose it is?

The consolation prize he really wanted to offer was, of course, a new border-security bill. But that’s going nowhere in the House too — thanks to conservatives, not moderates.

The bill from House Homeland Security Committee Chairman Michael McCaul (R., Texas) would provide $10 billion for equipment and technology along the Southwest border, including an array of drones, surveillance systems for land and sea, radar, and fencing. But some House conservatives said the bill didn’t do enough to crack down on illegal immigrants already living in the U.S. They also worry that Senate GOP leaders might latch onto it as a less-confrontational way to challenge President Barack Obama over immigration in a funding fight looming next month…

The weather aside, a contingent of conservatives wanted the House to wait on the border bill until the Senate votes on the immigration bill approved by the House earlier this month. They prefer that bill because it seeks to block implementation of Mr. Obama’s executive action.

No point in passing McCaul’s bill while there’s a House bill that would defund Obama’s amnesty currently pending in the Senate. If centrist Dems like Joe Manchin and Claire McCaskill know they can vote for McCaul to pander to Republican voters back home, then there’s no pressure on them to oppose Obama’s executive action. At the very least, the GOP should wait until the vote on defunding amnesty has played out before shifting to Plan B. And whatever Plan B ends up being, it should be stronger than McCaul’s bill. Mark Krikorian noted recently that McCaul’s security bill fails to do the one thing that border hawks desperately want — namely, require measurable improvements in security before Congress takes up the legalization question. Boehner’s willing to pass a security bill before moving on to amnesty, but is he willing to wait until that bill is implemented before moving on to the latter? That could take years. And establishmentarians worried about the Latino vote in 2016 don’t have years to spare.