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A Government Shutdown Can't Stop Obama's Immigration Plan—and John Boehner Knows It

Chip Somodevilla/Getty Images

In the nearly two weeks since President Obama announced he would protect millions of deeply rooted immigrants from deportation, conservatives have been impressively obtuse about how they hope to respond and whether they'll try to shut down the government again. 

Republicans had hoped to use regular spending legislation—which must pass before the government shuts down on December 11—to fund all of the government aside from Obama’s deportation relief program. But just as the right’s plan to defund the Affordable Care Act in 2013 ran up against the small problem that Obamacare isn't really dependent on annual appropriations, Obama’s deportation program is also largely on autopilot. Even a government shutdown won’t stop it from taking effect.

As in 2013, the only way to stop the dreaded Obamnesty is by prohibiting the government from implementing it. And as in 2013, there’s no way—even under the threat of a government shutdown—Obama will sign such a measure into law. Hal Rogers, the House Republicans’ top appropriator, has tried in vain to spell out this basic point to his conservative colleagues.

“[T]he Appropriations process cannot be used to 'de-fund' the [relevant] agency,” he explained in a pre-Thanksgiving statement. “The agency has the ability to continue to collect and use fees to continue current operations, and to expand operations as under a new Executive Order, without needing legislative approval by the Appropriations Committee or the Congress, even under a continuing resolution or a government shutdown.”

The right isn't buying it. Conservatives are convinced that Rogers is lying or hiding the ball or simply mistaken about the appropriations process. Citing a banal restatement of Congress’ legislative powers, the conservative website Breitbart concluded that Rogers “is wrong, and that Congress can in fact block funding for President Barack Obama’s executive amnesty order.”

But conservatives are just talking past Rogers. Ultimately, he’s saying, “Let’s not pick a shutdown fight,” and they’re replying, “No, let’s do precisely that.”

On Tuesday, in capitulation to reality, House GOP leadership weighed in on Rogers’s behalf.

“The House will vote this week on a symbolic immigration bill and then take up a two-part government funding bill next week,” according to Politico, “a spending bill which keeps most of the government funded through September 2015, but sets March as a deadline to renew funding for the Department of Homeland Security.”

Disenchanted Republicans are writing this plan off as a punt. But I think it’s basically complete surrender.

The idea here is to remove the threat of a complete government shutdown for the rest of the fiscal year and then fight Obama over the deportation program in the spring. If Obama doesn’t cave in March, the only collateral damage would be to the Department of Homeland Security.

As threats go, this is just about the opposite of threatening not to increase the debt limit. In a debt limit fight, the threat sounds mild—even politically popular—while the actual stakes are horrific. Threatening to shut down the Department of Homeland Security, by contrast, sounds insanely reckless, but would actually accomplish very little, and, most importantly, it would leave the deportation program completely intact.

In September of last year, DHS issued procedural guidance for agency staff (PDF) in anticipation of a government shutdown. The memorandum listed a variety of DHS functions that would be exempt—i.e. that would continue to operate—in the event of a funding lapse. These included Citizenship and Immigration Services, which will execute the deportation policy, but also criminal law enforcement operations, passenger processing and cargo inspection functions, Secret Service, counter-terrorism, and the select administrative personnel required to carry out these duties. In other words, DHS' core functions would continue, and most of the employees carrying out those functions would stay on the job. 

Other personnel including planning, research, development and support staff would be furloughed. So shutting down DHS doesn’t entail zero costs, but it’s a pretty toothless threat. On the other hand, it sounds like a gonzo threat to sacrifice the security of the United States on the altar of nativist immigration policy. The idea is to append a rider that deauthorizes the deferred action program to a bill that funds the Department of Homeland Security and send it off to Obama for signature. Then, if Obama vetoes it, Republicans can say he’s the one who’s putting America at risk.

But it isn’t clear that such a bill could clear the Senate, which would leave the ball for defending the American Homeland™ squarely in Republicans' court. And even if it could pass, Obama would have a much easier time communicating the nature of the GOP’s threat than he did when Republicans were threatening not to increase the debt limit. I can think of few more effective ways for Republicans to re-surrender national security as an issue to Obama than by taking the Department of Homeland Security hostage like this. Yet if Boehner’s leverage is illusory, then Republicans are essentially admitting that they have no good moves here, other than to kvetch about amnesty for months on end while the well-attuned Hispanic voting population watches in disgust. This is something I imagine Obama understood all along.