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Immigration Gridlock in Washington—What’s Next?

By Justin Fisk, CSG Washington, D.C., Office
Congress has by the end of this week to pass legislation to fund the Department of Homeland Security. After Feb. 27, the department will be forced to cut all nonessential personnel.
The funding dispute between Republican and Democrat lawmakers largely revolves around the executive order on immigration President Obama issued last November that expanded the number of people eligible for the Deferred Action for Childhood Arrivals program. To add more uncertainty to the issue, a federal court in Texas has temporarily blocked the executive order saying it would place major burdens on state governments and strain state budgets. President Obama has vowed to appeal the court’s decision; however, the administration will not proceed with the provisions outlined in the executive order until the appeals process is completed.
Many Republicans in Congress considered the president’s executive order as an overreach in his authority and unconstitutional. In response, Congress only passed a short-term funding bill for the Department of Homeland Security, the primary federal agency responsible for carrying out the president’s executive order, to allow adequate time to debate this issue. The House has passed legislation funding the Department of Homeland Security that includes language that would repeal the president’s executive order. Senate Democrats have filibustered the House bill and are calling for a clean funding bill.
With the funding deadline looming, many state and local leaders are closely watching Washington to see if federal policymakers can find a solution to fund the Department of Homeland Security and to maintain key personnel and resources in their state.
The Department of Homeland Security has personnel and assets in all 50 states. Homeland Security Directory Jeh Johnson told CNN’s Dana Bash that if the department runs out of funding by the Feb. 27 deadline, the shutdown would force a furlough of about 30,000 employees. The vast majority of the personnel at the Department of Homeland Security is considered “essential” and would therefore not be furloughed.
Johnson told those attending the National Governors Association meeting Feb. 22 that a DHS shutdown would be devastating for state and local governments. Under a shutdown, the Department of Homeland Security would suspend all nondisaster-related grant programs to state and local governments, which includes $2 billion in grants to state and local law enforcement officials.
At the state level, governors and attorneys general in 26 states filed a joint lawsuit on Dec. 3, 2014, against the president’s executive order. The state leaders claim the executive order “unilaterally suspends(s) the immigration laws as applied to 4 million of the 11 million undocumented immigrants.”
In response, 12 states and the District of Columbia submitted a friend of the court brief Jan. 12. The brief claims that there is no legal basis for a court-ordered preliminary injunction and that the president’s executive order actually would benefit states.
Then on Feb. 16, Judge Andrew S. Hanen of the Federal District Court for the Southern District of Texas in Brownsville, ruled in favor of the 26 states. The judge said the president’s executive order would strain state budgets, impose major burdens on state governments and unleash illegal immigration. In addition, the judge said the president’s executive action did not follow correct procedures.
Texas Gov. Greg Abbott said in a press release, “President Obama abdicated his responsibility to uphold the United States Constitution when he attempted to circumvent the laws passed by Congress via executive fiat … and Judge Hanen’s decision rightly stops the president’s overreach in its tracks.”
President Obama has vowed to appeal the court ruling saying, “The law is on our side, and history is on our side.”
The White House planned to roll out the executive order in two phases.
The first would expand the Deferred Action on Childhood Arrivals, which allowed certain young undocumented immigrants to receive a renewable two-year work permit, obtain driver’s licenses and pay taxes. This program was scheduled to begin on Jan 18, a day after the court’s decision. The second phase would allow immigrant parents of U.S.-born citizens to apply for a similar program. This was scheduled to begin in May. Both programs were expected to affect hundreds of thousands of immigrants but will both face delays due to the court ruling.
The court’s decision may affect Republican lawmakers’ decision on whether to fund the Department of Homeland Security. According to Roll Call, a senior GOP aide in the House said, “The judge’s ruling should make a short-term funding extension pill marginally easier to swallow … Like most medicine, it was never a pill anyone actually wants to take, but at least now it wouldn’t taste as bad on its way down.”
Other Republicans, however, appear re-energized by the court’s decision to pass legislation that would repeal the executive order. Sen. Jeff sessions of Alabama said, “We cannot and must not establish the precedent that we will fund illegal actions on the hope that another branch of government will intervene and strike down that illegal action at some later point.”
 
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