Dec 1, 2014 - 1 The legislative branch does have the ability to block executive action. A new memo from the Congressiona
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Interested Parties Heritage Action for America December 1, 2014 Senate has Limited Options in Responding to Housepassed Funding Bill
Lawmakers have just ten days to craft a government spending bill and a response to President Obama's recently announced changes to our nation's immigration laws. As incoming Senate Majority Leader Mitch McConnell noted, the two issues are inextricably connected because "The only tool we have is the power of the purse." The Republicancontrolled House could and should pass a bill that funds the government while blocking the President’s executive actions on immigration.1 Doing so would not only signal House Republicans are delivering on their election mandate, but also provide an opportunity to the growing number of Senate Democrats publicly opposed to the plan to back up their rhetoric with real action.2 Short of accepting the House’s restrictions, outgoing Senate Majority Leader Harry Reid is left with three basic choices: block the Housepassed bill, pass his own bill or strip the rider from the Housepassed bill. With a united Senate Republican Conference and the aforementioned Democratic opposition, Reid’s chances for success are questionable. Block the Housepassed Bill In most circumstances, the Senate is required to take multiple votes to proceed to a bill. Reid could prevent debate and consideration of the Housepassed bill by filibustering the “motion to proceed.” As few as 41 Senators could prevent Senate consideration, though it would be fair to characterize such as vote as prioritizing work permits and Social Security numbers for immigrants who are in the country illegally above all else, including funding of the government.
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The legislative branch does have the ability to block executive action. A new memo from the Congressional Research Service makes clear “the funds available to the agency through fee collections would be subject to the same potential restrictions imposed by Congress on the use of its appropriations as any other type of appropriated funds.” 2 See appendix on Page 4 for a list of Senate Democrats.
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Even if Reid is successful in blocking consideration of the Housepassed bill, the vote itself would be an important benchmark.3 And it would not necessarily signal an end to the legislative fight because the Republicancontrolled House would not be compelled to pass a new bill simply because Reid demanded such action. The onus should remain on Reid’s Senate to act to fund the government. Pass a Senatecrafted Bill The Senate is under no obligation to consider legislation passed by the House of Representatives, as evinced by the 408 Housepassed bills currently awaiting action in the Senate, raising concerns that Reid would simply ignore the Housepassed bill. To blunt the narrative that Senate Democrats are ignoring, filibustering or killing a government funding bill, Reid could attempt to pass a Senatecrafted appropriations measure. However, cloture (a 60vote threshold) would need to be invoked on this new bill, which would require the support of at least five Republican Senators.4 Given that McConnell has indicated he will support whatever legislation comes over from the House, there is no reason for his Republican colleagues to vote in favor of Reid’s alternative. If Senate Republicans hold together, they can force Reid not only to consider the Housepassed bill, but also to block his attempts to offer a Senatecrafted version of the funding bill that does not include language blocking the President’s executive actions on immigration. Strip Language from Housepassed Bill If Reid proceeds to the Housepassed bill, he could opt to strike the language blocking the President’s executive actions on immigration. Considering the unlikely nature of wrangling 60 Senators to strike the rider before cloture is invoked on the Housepassed bill, Reid could move to strike the language after cloture has been invoked. Doing so would require 51 votes, meaning Republicans would have to pick up five Democrats to protect the language included by the House. A vote in favor of the motion to strike would be an explicit endorsement of the President’s executive actions. It is unclear if Reid possesses the necessary votes, making this approach highrisk. Failing to strip the language would be a political embarrassment for both Reid and the White House, and mean the Housepassed bill would only need a final vote (simple majority) before heading to President Obama’s desk. President Obama, for the first time in his presidency, would be faced with a choice: sign the bill and keep the government running or veto the bill and cause a government shutdown.
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There are other ways Reid could attempt to block or kill the Housepassed bill, but denying cloture on the motion to proceed is considered the most likely. 4 Reid has other potential paths a standalone Senateoriginated bill or a substitute amendment on the Housepassed funding bill or any other House bill on the Senate calendar but they all need Republican support.
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Good Policy is Good Politics Even though details of the President’s plan were scarce, an NBC News/Wall Street Journal Survey found just 38% of Americans support “executive action on immigration.” We now know the Democratic Senatorial Campaign Committee begged the President to delay action until after the election, suggesting internal polling found it to be divisive and unpopular. Additionally, at least six Senate Democrats have voiced opposition since the announcement. After passing a bill to fund the government and block the President’s executive actions, Republicans will have a clear, concise message: Message 1: The Republicancontrolled House has acted to fund the government, but granting quasilegal status, work permits and Social Security cards to those who are in the country illegally is unfair to American workers and all of those who are waiting abroad to come to our country legally. Message 2: President Obama is threatening to shut down major parts of the government all because he wanted to give work permits and Social Security numbers to millions who are in this country illegally. Voters rejected President Obama’s policies in November. It is time for him to finally listen to the American people. Message 3: The Republicancontrolled House has acted to fund the government, but Harry Reid is playing games that are stirring fears of a government shutdown. Does Reid really believe granting work permits and Social Security numbers to immigrants who are in the country illegally is a higher priority than funding the government?
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Appendix At least six Senate Democrats have expressed opposition to President Obama’s latest executive actions, which would grant quasilegal status, work permits and Social Security numbers to those who are in the country illegally. Sen. Mary Landrieu (DLA): "We are all frustrated with our broken immigration system, but the way forward is not unilateral action by the president.” (“Landrieu splits with Obama on immigration action,” Associated Press, 11/21/14), http://apne.ws/1z957xJ) Sen. Joe Donnelly (DIN): "It is clear the immigration system in this country is broken, and only Congress has the ability to change the law to fix it...I am as frustrated as anyone that Congress is not doing its job, but the president shouldn't make such significant policy changes on his own." (“Donnelly sees Obama immigration move as too much,” The CourierJournal, 11/20/14, http://cjky.it/14T2SW9) Sen. Claire McCaskill (DMO): “Our immigration system is broken, and I support a comprehensive plan to fix it, but executive orders aren’t the way to do it.” (“Local Lawmakers Oppose Obama's Immigration Action,” KOLR10 News, 11/20/14, http://bit.ly/1FHJdUy) Sen. Joe Manchin (DWV): “I disagree with the President’s decision to use executive action to make changes to our immigration system, and I disagree with the House’s decision to not even take a vote on the bipartisan Senate legislation that overwhelmingly passed in June 2013.” (“Obama announces immigration plan; WV reps react,” MetroNews, 11/20/14, http://bit.ly/1vbQOcM) Sen. Heidi Heitkamp (DND): “I’m disappointed the president decided to use executive action at this time on this issue, as it could poison any hope of compromise or bipartisanship in the new Senate before it has even started. It’s Congress’ job to pass legislation and deal with issues of this magnitude.” (“Obama fails to convince some Dems on immigration,” Politico, 11/20/14, http://politi.co/1yCcJdJ) Sen. Angus King (IME): "I worry that his taking unilateral action could in fact inflame public opinion, change the subject from immigration to the president. I also have constitutional concerns about where prosecutorial discretion ends and unconstitutional executive authority begins." (“GOP leaders warn 'impeachment' is a dirty word,” Politico, 11/19/14, http://politi.co/1F0YPlI) At least four others expressed concern earlier this year: Sen. Al Franken (DMN): “‘I have concerns about executive action,’ said Franken, who had previously declined to comment, in a statement Thursday. ‘This is a job for Congress, and it’s time for the House to act.’” (“Senate Democrats Urge President Obama To Delay Immigration Order,” Politico, 9/5/14, http://politi.co/1pwyMtR) Sen. Mark Warner (DVA): “A big issue like immigration, the best way to get a comprehensive solution is to take this through the legislative process.” (“Warner: 'Right decision’ to delay on immigration,” The Hill, 09/08/14, http://bit.ly/1tvyVRt) Sen. Mark Pryor (DAR): “I don’t like government by executive order. I just don’t, generally, so I’d have to look and see specifically what he’s proposing and what he’s talking about...Overall, I don’t approve of that approach.” (“Vulnerable Dems balk at Obama actions,” The Hill, 7/30/14, http://bit.ly/1lcSSIX) Sen. Kay Hagan (DNC): “I think this is a congressional issue and I encourage Speaker [John] Boehner [ROhio] in the House to bring up a bill, to vote on a bill for immigration reform so that we can then put it into conference...And I do support congressional action over executive action.” (“Vulnerable Dems balk at Obama actions,” The Hill, 7/30/14, http://bit.ly/1lcSSIX)
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