Taylor Swift, on DHS Funding and Immigration

In two recent developments, (1) a Federal District Court judge on Monday barred the Department of Homeland Security (DHS) from implementing the president’s recent executive action on immigration; and (2) the House passed a bill (H.R. 240) funding DHS through the end of the fiscal year, but with a rider that also barred the immigration action. With these moves, Republicans might – or might not, according to Ms. Swift – have made progress toward their twin goals of reversing the president’s immigration policy and restoring regular order to the budget process.

Here’s the situation: DHS has been living off of a continuing resolution that expires at the end of this month. H.R. 240 has hit a roadblock in the Senate, where Democrats, with enough votes to block the Republican bill, have insisted on a “clean” bill – i.e., without the rider. The standoff has threatened to shut down the agency.

The judge’s ruling has temporarily stopped the executive action, as the agency notes on its web site; thus, Republicans have for now gained one of their two goals. But the second goal – regular order – is proving elusive, as the ruling does not appear to have changed the political standoff over DHS funding. According to Republican logic, Senate Democrats should concede the obvious and allow the House bill, with the rider, to pass; but according to Democratic logic, Republicans should declare victory and allow a clean bill to pass – see Huffington Post and Politico stories.

The whole situation has become so choked with political nettles that it needs a calmer forum – i.e., this blog – to sort some things out.

First, let’s call the president’s action for what it is: an executive action, not an executive order, as some have reported. The distinction is important. The latter comes from the president and is legally binding on agencies and the public; it gets published in the Federal Register. The former is less formal, more in the nature of policy guidance; executive actions are often published only within a department or agency. Thus, DHS Secretary Johnson’s memorandum last November, which set this whole thing off, was supposed merely to amend the Department’s existing guidance on how the Department should treat individuals who came to the U.S. as children – a program known as Deferred Action for Childhood Arrivals, or DACA.

Second, although the November memorandum was the action most at issue in the judge’s ruling, the House-passed funding bill also barred funding for the existing guidance, plus 13 other immigration-related memoranda that were not directly part of the lawsuit (see H.R. 240, section 579). These include several memos going back to 2011 that DHS critics cite as weakening immigration enforcement. This may explain the Republican insistence that the court ruling does not change the political dynamic, even if they are not saying this out loud.

Third, and without going into too much detail… where the court had a problem is that what DHS did was a “final agency action” (i.e., a big deal), within the meaning of the Administrative Procedure Act (APA); and that the plaintiffs could eventually prevail on the merits. In other words, an appeals court might order DHS to stop DACA until it had gone through the APA routines of rulemaking, public notice, etc. The court also feared that if that happened, it would be difficult to “unscramble the eggs” of DHS’s actions; hence, the preliminary injunction to keep the whole program from getting too far off the ground. [This editor invites readers to comment with their own conclusions whether the DHS’s memorandum comes under the APA. We also invite comments whether DACA is merely a way of getting around what normally would have required congressional action.]

To this we note that the federal judge never questioned DHS’s authority to order its own priorities, given its limited funding. In fact, the court found that any decisions about how to allocate budget resources are “discretionary decisions solely within the purview of the Executive Branch.”

It’s also clear DHS has been operating under some budget constraints. The following chart (click on chart for bigger version) shows that Immigration and Customs Enforcement (ICE) has essentially been flat-funded since 2010, even as the problem of enforcing our immigration and customs laws has increased. The November actions were intended to give some guidance as to the Department’s priorities under these conditions.

The administration has vowed to appeal the preliminary injunction. If the lower court’s reasoning is upheld, the White House can block the Republicans’ goal simply by re-defining its approach to the problem as an allocation-of-limited-funding matter rather than a program matter. And if Congress continues its standoff, this will give regular order quite a setback. Thus, neither of the Republican goals is guaranteed, despite the modest progress.

Oh, yes … Taylor Swift. Did any readers of this blog see her on Late Night Tuesday evening (Feb 17)? She had a quote that’s apropos here: If you chase two rabbits, you’ll lose them both.