Commentary Magazine


Court Immigration Ruling Doesn’t Solve Congress’s Homeland Security Dilemma

Republicans looking for a way out of their Department of Homeland Security funding tangle got a shot in the arm yesterday when a federal judge in Texas issued a ruling temporarily ordering the federal government to stop any implementation of President Obama’s executive orders granting amnesty to up to five million illegal aliens. Judge Andrew S. Hanen’s decision is a morale boost to those who agree that the president’s effort to bypass both Congress and the usual constitutional order was a blow to the rule of law. But it may not stop Obama’s effort for long and it won’t resolve an impasse in which a Senate Democratic filibuster of a House bill funding DHS has raised the possibility of a shutdown of the department. Hanen bolsters the sense among GOP members that they are right to press this issue. Yet it doesn’t provide them with the means to either block amnesty or to come out of this standoff without looking as bad or even worse than they did during the 2013 government shutdown.

Hanen is already on record as an outspoken critic of liberal immigration policies, but his ruling was on technical grounds rather than on the constitutionality of the presidential executive orders. With one of the programs granting legal status to those here without permission about to start receiving applications, the decision does stop its implementation. But if, as expected, the administration complies with the requirements to give notice of their procedures, the order might be quickly lifted at the appellate level. Writing from Brownsville, Texas along the border with Mexico, Hanen sided with the states that filed the lawsuit seeking to stop the implementation of the orders and believes they are right to say that the federal government has failed to enforce immigration laws in a way that “drains the states’ resources.” He’s right about that, but it’s far from clear that higher courts will uphold the ruling or even agree that the states have the legal standing to challenge the executive branch’s ability to enforce laws in any way it pleases, even if means acting in a manner that annuls a law passed by Congress.

Although Hanen and the plaintiffs in the lawsuit are right to argue that the president’s actions constitute a body blow to the rule of law, the administration may be right to term this ruling a mere “speed bump” on the road to granting millions of illegals the right to stay and work in the country. Though his high-handed behavior constitutes an end run around the Constitution, the president’s defenders may well be right in thinking that the concept of federal supremacy on the question of immigration dooms the lawsuit in the long run. Though House Speaker John Boehner and Senate Majority Leader Mitch McConnell would love for the courts to provide them with an escape hatch from the dispute over funding DHS, Judge Hanen isn’t likely to provide them with one.

That puts Republicans back in the back in the box in which they’ve been placed by Obama’s audacious decision to do what he said 22 times previously he didn’t have the power to do. If they don’t try and use the power of the purse to prevent Obama from nullifying a law they’ve passed, the GOP grass roots will rightly lambast their leaders for letting Obama get away with murder despite their control of both Houses of Congress. But if they stick to their position that they will not fund DHS without including provisions that will prevent Obama from carrying out his extralegal plans, they will once again be lambasted as a party that is stopping the government from performing its proper functions. Indeed, as disastrous as the 2013 government shutdown over ObamaCare funding was, a more limited shutdown that would affect Homeland Security just at a moment when concern over terrorism is at the top of the national agenda might be even more misguided.

In that sense, the Texas ruling may actually complicate things for Republicans in Washington. Hanen’s decision strengthens their sense that they are very much in the right and Obama in the wrong on the substance of this dispute. It also would make any retreat on the issue even more problematic for a pair of leaders who are already vulnerable to critics within their caucuses who see them as insufficiently tough in dealing with an unscrupulous administration with no respect for the law.

Our John Steele Gordon was right to point out that the engine of their problem is a liberal mainstream media that blames Republicans no matter what happens. The GOP was blamed for the shutdown in 2013 because Senate Republicans stood their ground. Today, when it is the Senate Democrats who are obstructing the passage of a House bill that would fund DHS, the media is still prepared to blame the Republicans for the consequences of their filibuster.

John may also be right that in the long run conservatives must stand up to liberal media bias and to attempt to make their slanted coverage the issue rather than lying down and accepting the role of whipping boys for Washington gridlock. But there is a reason why the GOP is always going to be blamed for upsetting the D.C. applecart. That’s because it is the Democrats who always defend the existing system and the prerogatives of big government even when that leads them to trash the Constitution. It is the Republicans who are in the position of trying to halt this runaway train. That is the right thing to do, but even the noblest cause must be conducted in a responsible manner. Defunding DHS at a time when ISIS is burning and beheading people isn’t going to strike most Americans as smart or principled.

I believe Obama’s orders have created a constitutional crisis, but it is not one that can be resolved by budget maneuvers. Nor are the courts likely to follow Hanen’s lead and stop Obama in his tracks, as they ought to do. In the end the only way the president’s extralegal measures can be overturned is by the voters in November 2016. Until then, Republicans would do well to avoid falling into traps set for them by the White House and their media allies.

Join the discussion…

Are you a subscriber? Log in to comment »

Not a subscriber? Join the discussion today, subscribe to Commentary »

4 Responses to “Court Immigration Ruling Doesn’t Solve Congress’s Homeland Security Dilemma”

  1. PAUL FREEDMAN says:

    If not now, when? The premise of Constitutional hubris does not sync up with the conclusion that, well, nothing can be done because that would be imprudent. The imprudence, the breach in the Constitutional order has already occurred.

    But for some the time is never right to oppose this President and his courtier press, never mind the logical absurdities of the progressive self-contradictory rationales for abject passivity.

    The lamest of these rationales is the pretense that for the GOP to do anything but roll over on its back and wave its paws in the air is falling for an Obama trap. Yesirree bob. The President doesn’t wish the Republican Party to surrender its legislative prerogatives and let him make laws on the fly between vacations, fund-raisers, and selfies, God forbid. Secretly he wishes the GOP to attempt to stop him because because, because and then it gets vague lost in a haze of consultant-drive polling data throat clearing and pointing to the next election cycle.

    After all, the base was informed that the GOP was only 1/2 of 1/3. OK, That was rectified. Then we were informed that the GOP actually needs to accomplish a filibuster proof majority in the Senate. Well the filibuster can be ended by majority decision and adjustment of Senate rules. We were told before the 2014 mid-terms that Cromnibus should be passed to permit a focused deployment of the power of the purse via a rider on the DHS bill. Now we are told, after the House has followed that very promised stratregy, no no ohmigosh what would MSNBC and the Washington Post-NYTimes LA-DC-NY axis say, we must wait for the GOP to capture the Presidency in 2016.

    If the GOP thinks it can win that Presidency by serially dissimulating its intended actions to the base it is mistaken. There are not enough $100,000 a plate fund raisers to vote that puppy into the White House.

  2. KENT LYON says:

    So, Mr. Tobin advocates that because Obama violates the Constitution, and Senate Democrats stand firm in aiding him to violate the Constitution, that Republicans in the House should violate the Constitution until America’s voters decide they like the Constitution and will vote for someone who will uphold it. That position is morally reprehensible. I would advocate that Republicans in the House and Senate do everything possible to avoid violating the Constitution, or allowing Obama or the Senate Democrats to violate the Constitution, including holding tough on the funding bill that strips funding for Obama’s unconstitutional edicts on immigration. If they lose, and the voters reject their Constitutional actions, then America will be shown to be an unconstitutional monarchy with no valid Constitution and illegitimate government. Let’s see what the American people support. Why Mr. Tobin and his fellow commentators continually advocate putting a Republican seal and funding to unconstitutional government is difficult to rationalize, except to conclude that they really don’t want to live in a Constitutional Republic under the rule of law. Maybe I will emigrate to Israel, although I am not jewish, so I can live in a Constitutional representative Democracy. At least Isreal is still one. America is not. And Mr. Tobin shares part of the blame that we have lost American liberty.

  3. PAUL FREEDMAN says:

    An additional thought–given the President’s recent blovation on how “terrorist narratives” are fed by mentioning that Islamist terrorists are … Islamists and his further clarification that opposition to mass amnesty is a prime example, with said amnesty conveniently located with the HSA, we may fairly conclude that the President believes that terrorism is most expeditiously combatted by: a) closing Gitmo (and, i.e., freeing terrorists he stumbles into actually seizing), b) adding the HSA to the list of federal agencies whose chief purpose will be Muslim outreach and social work (cum or even via ingathering from Mexico)–perhaps, under this administration, outright abolition of the HSA might well be a boon to national security. McCain and the author of this article inhabit a universe in which happily the President, unlike the President in our own universe, places national security above compulsive bashing of Christian oppression and the sins of white folks

Pin It on Pinterest

Share This

Share This

Share this post with your friends!

Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
for full access to
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
Don't have a log in?
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.