5-day Countdown begins for DHS shutdown

Republicans in the Senate are sending mixed messages about a potential shutdown of the Department of Homeland Security over defunding President Obama's immigration executive orders.  Some conservative senators believe that the GOP should stand pat and keep the House defunding measures in the bill, regardless of if DHS shuts down.  Other Republican senators want the amendments defunding immigration to be voted on separately.  Still other senators want the amendments taken out entirely and the issue left to the courts, where the Republicans are currently winning.

The Senate will try for the fourth time tonight to pass the funding bill, but once again Democrats are expected to successfully block it.  That will leave the issue up to the two GOP leaders – Senate Majority Leader Mitch McConnell and House Speaker Rep. John Boehner.  Both men are being tight-lipped about their future plans.

The Hill:

Boehner could lay out his next play when the House GOP conference meets on Wednesday morning, which would leave him just 72 hours to prevent a shutdown.

One option being floated is a short-term spending bill known as a continuing resolution (CR), but it is not clear whether this would pass muster.

Homeland Security Secretary Jeh Johnson has been lobbying Republicans and Democrats about the agency’s need for new funding, which he says would bring the mind of stability that a CR cannot provide.

“When you're on a continuing resolution, it is a little like trying to drive cross-country with no more than five gallons of gas at a time and you don't know when the next gas station is,” Johnson said on Fox News last week. “You can't plan except days and weeks at a time.”

Over the weekend, Johnson emphasized that a new threat by terrorist group al-Shabaab to attack Western malls in the U.S. and United Kingdom demonstrates why DHS needs a new budget.

"It’s absurd that we’re even having this conversation about Congress’s inability to fund Homeland Security in these challenging times," he said on CNN’s “State of the Union.”

Centrist Republicans have openly worried that their party could take a significant political hit by shutting down DHS, while more conservative members have downplayed that threat. The Republican brand was badly damaged by the 16-day government shutdown in 2013, though the party had recovered by the 2014 midterm elections.

After last week’s court ruling, Sen. John McCain (R-Ariz.) argued it could be best for the GOP to let the fight play out in the courts, where he said Republicans are winning.

“"We now have an exit sign," he said Sunday on CBS's "Face the Nation." "And that is the federal court decision saying that the president's actions unilaterally are unconstitutional. And I think we've got a great argument to hand to the Supreme Court, where it will go."

Other GOP senators, including Bob Corker (Tenn.) and Lindsey Graham (S.C.), echoed McCain’s comment on the Sunday morning political talk shows about courts handling the constitutionality of Obama’s actions.

The problem for McCain and other Republicans who want the courts to decide the issue is that the ruling by the federal judge last week had nothing to do with deciding the constitutionality of the president's actions.  The 26 states that sued to overturn Obama's executive orders got an injunction based on an obscure administrative law that the administration violated by not posting the new regulations in the Federal Register, the daily digest of government business.  The administration is currently challenging the ruling, and the injunction may be lifted by Friday.  Once lifted, the administration can continue to implement its plans.

It appears that Republicans have two viable choices, since they will never get a DHS funding bill through the Senate that defunds the immigration orders: either pass a continuing resolution that will fund the department for 30 or 60 days, or remove the defunding amendments from the spending bill and pass it, hoping the issue will eventually be resolved by the courts.  If they go the CR route, there's a chance that, in the meantime, the federal court will issue a permanent injunction against the orders and the funding issue will become moot.

Neither plan guarantees that the executive orders won't be funded.  Because of that, a CR would be a hard sell to the House and may not even make it through the Senate.  That's why it's probable that DHS will run out of money Friday, at midnight.

Republicans in the Senate are sending mixed messages about a potential shutdown of the Department of Homeland Security over defunding President Obama's immigration executive orders.  Some conservative senators believe that the GOP should stand pat and keep the House defunding measures in the bill, regardless of if DHS shuts down.  Other Republican senators want the amendments defunding immigration to be voted on separately.  Still other senators want the amendments taken out entirely and the issue left to the courts, where the Republicans are currently winning.

The Senate will try for the fourth time tonight to pass the funding bill, but once again Democrats are expected to successfully block it.  That will leave the issue up to the two GOP leaders – Senate Majority Leader Mitch McConnell and House Speaker Rep. John Boehner.  Both men are being tight-lipped about their future plans.

The Hill:

Boehner could lay out his next play when the House GOP conference meets on Wednesday morning, which would leave him just 72 hours to prevent a shutdown.

One option being floated is a short-term spending bill known as a continuing resolution (CR), but it is not clear whether this would pass muster.

Homeland Security Secretary Jeh Johnson has been lobbying Republicans and Democrats about the agency’s need for new funding, which he says would bring the mind of stability that a CR cannot provide.

“When you're on a continuing resolution, it is a little like trying to drive cross-country with no more than five gallons of gas at a time and you don't know when the next gas station is,” Johnson said on Fox News last week. “You can't plan except days and weeks at a time.”

Over the weekend, Johnson emphasized that a new threat by terrorist group al-Shabaab to attack Western malls in the U.S. and United Kingdom demonstrates why DHS needs a new budget.

"It’s absurd that we’re even having this conversation about Congress’s inability to fund Homeland Security in these challenging times," he said on CNN’s “State of the Union.”

Centrist Republicans have openly worried that their party could take a significant political hit by shutting down DHS, while more conservative members have downplayed that threat. The Republican brand was badly damaged by the 16-day government shutdown in 2013, though the party had recovered by the 2014 midterm elections.

After last week’s court ruling, Sen. John McCain (R-Ariz.) argued it could be best for the GOP to let the fight play out in the courts, where he said Republicans are winning.

“"We now have an exit sign," he said Sunday on CBS's "Face the Nation." "And that is the federal court decision saying that the president's actions unilaterally are unconstitutional. And I think we've got a great argument to hand to the Supreme Court, where it will go."

Other GOP senators, including Bob Corker (Tenn.) and Lindsey Graham (S.C.), echoed McCain’s comment on the Sunday morning political talk shows about courts handling the constitutionality of Obama’s actions.

The problem for McCain and other Republicans who want the courts to decide the issue is that the ruling by the federal judge last week had nothing to do with deciding the constitutionality of the president's actions.  The 26 states that sued to overturn Obama's executive orders got an injunction based on an obscure administrative law that the administration violated by not posting the new regulations in the Federal Register, the daily digest of government business.  The administration is currently challenging the ruling, and the injunction may be lifted by Friday.  Once lifted, the administration can continue to implement its plans.

It appears that Republicans have two viable choices, since they will never get a DHS funding bill through the Senate that defunds the immigration orders: either pass a continuing resolution that will fund the department for 30 or 60 days, or remove the defunding amendments from the spending bill and pass it, hoping the issue will eventually be resolved by the courts.  If they go the CR route, there's a chance that, in the meantime, the federal court will issue a permanent injunction against the orders and the funding issue will become moot.

Neither plan guarantees that the executive orders won't be funded.  Because of that, a CR would be a hard sell to the House and may not even make it through the Senate.  That's why it's probable that DHS will run out of money Friday, at midnight.