Will DHS funding dynamics shift after court ruling?

Now that a preliminary injunction has halted Barack Obama’s unilateral attempt at changing immigration law, what happens to the Republican effort to defund it? It will take several weeks for the Obama administration to have their appeal heard, but the funding for DHS runs out in days, not weeks, and Republicans want to block funding for any operation that will facilitate Obama’s executive actions. Until this morning, it appeared that Republicans might have to go back to the drawing board, thanks to three successful Democratic filibusters. Last night, the Christian Science Monitor noted the impasse:

With that move, the goal was to allow a Congress newly under full Republican control to consider how to challenge Mr. Obama on grounds of both executive overreach and abdication of the president’s duty to enforce immigration laws.

However, three times this month in the Senate, Democrats have been able to block the Republican majority from considering the DHS appropriations bill that the House passed. …

“The House has acted to fund the department and to stop the president’s overreach when it comes to immigration and his executive orders,” Speaker Boehner said on Fox News. “It’s time for the Senate to act.”

But interviewer Chris Wallace responded that Senate Republicans lack a filibuster-proof majority, and he quoted Senate majority leader Mitch McConnell:

“It’s clear we can’t go forward in the Senate,” Senator McConnell said last week. “The next move obviously is up to the House.”

Boehner, on Sunday, disagreed: “If the Senate doesn’t like [the House bill], they’ll have to produce something that fits their institution.”

A DHS shutdown from a rift between a unified Congress and White House would have benefits and drawbacks for both Democrats and Republicans. One created by a rift between Republicans in the House and Senate would be an embarrassment for the GOP — or would have been, before this morning. The inability to coalesce on a strategy would have portended a difficult run-up to a presidential election that will require plenty of teamwork for the GOP to win. Public opinion for the shutdown would have fallen entirely on Republican shoulders in that scenario, even if it wouldn’t really shut down anything critical at DHS anyway.

The ruling changes the dynamics, and puts the White House on the defensive, in part because of the lengthy and definitive opinion that accompanied the PI. With 26 states winning the first round and a federal court agreeing that Obama’s executive actions violate the law, suddenly the fight over DHS funding looks a lot more like Congress keeping a rogue President in check rather than another partisan budget squabble. That could change in several weeks if the PI gets overturned, but that won’t help Democrats in the funding fight. The ruling puts them at a big disadvantage, fighting for an illegal abuse of executive power for an unpopular president.

The Huffington Post’s Elise Foley warned about that possibility last week:

U.S. District Judge Andrew Hanen of Brownsville, Texas, is expected to issue a ruling soon on an injunction requested by 26 states to prevent the Obama administration from going forward with recent executive actions on immigration as their lawsuit goes through the courts.

Should he rule with the states in favor of an injunction, some Republicans in Congress say it could break the impasse on funding DHS, which is currently at a standstill despite a nearing Feb. 27 deadline.  …

“I think it’s a great opportunity for the Senate Democrats to actually allow our bill to move forward,” Rep. Tim Huelskamp (R-Kan.) said at the event. “There should be no concerns to them if the courts are saying this is not going to be implemented.”

Sen. Jeff Sessions (R-Ala.), one of the biggest opponents of the executive actions in the upper chamber, took a similar view when asked if an injunction would change anything for the DHS funding impasse.

“I think it would have a huge impact,” he told HuffPost. “I would think it would be further proof that the president overreached and shouldn’t be funded, and it would cause the Democrats to re-evaluate their obstruction.”

Foley suggested that the PI’s protection against executive overreach might convince conservatives to allow a short-term bill that fully funds DHS. It’s much more likely that the ruling will leave moderate Republicans in the Senate no cover to push for a so-called “clean” bill. After all, what would be the rationale for giving DHS all of the funding when Josh Earnest woke up at 2:48 AM this morning to declare that the White House still planned to use it to move forward with its executive action on immigration? With the court ruling Obama’s plan unconstitutional and illegal, they will have no choice but to fall back in line to restrict funding from those efforts.

There may be one way out of the impasse for McConnell, though, and that would be using the reconciliation process. Democrats used that most notoriously to pass ObamaCare, but it depends on a ruling from the Senate parliamentarian that the legislation under consideration will have an impact on the budget deficit and has to be drafted specifically as a reconciliation bill, according to the rules of reconciliation that Keith Hennessey explained in 2009. It’s complicated, and perhaps the reason McConnell hasn’t tried this is because the DHS funding wouldn’t exceed the budget resolutions passed late last year. However, that didn’t stop Democrats from passing an entirely new program under reconciliation in 2010, either.

Either way, don’t expect John Boehner to go back to the drawing board in the House after this ruling. Whatever the solution may be, it will be up to McConnell to provide it, especially now that a federal court has weighed in on the legality of Obama’s planned actions.

Update: The court issued a preliminary injunction, not a temporary restraining order. A PI sustains itself until overturned or mooted by a later court ruling. Thanks to commenter blammm for the correction.