Scanning the horizon for a solution.

Photographer: Charles Ommanney/Reportage by Getty Images

Republicans' Immigration Escape Route

Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of “The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life.”
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You can see why Mitch McConnell wants out of this fight.

Republicans are irate about President Barack Obama's plans to offer work permits to illegal immigrants. This amnesty would be carried out by the Department of Homeland Security, which is about to run out of money. So the Republican House has passed a bill that would fund the department while blocking the amnesty.

McConnell, the leader of the Senate Republicans, doesn't have the votes to get the bill through his chamber. And he worries that if the standoff continues -- the department's funding expires today -- the public will blame Republicans for another government shutdown, this one focusing on a part of the government charged with fighting terrorism.

Instead, he wants Congress to pass a bill funding the department, then to vote on another one blocking Obama's immigration orders. He argues that these bills will put several Senate Democrats in a bind. These Democrats say they oppose the amnesty, but they're obstructing the Senate bill because they think it's wrong and dangerous to tie the issue to homeland security funding. They would have no such justification for blocking a standalone bill against amnesty. Either they'll have to buck the president and demonstrate his extremism on the issue, or they'll have to expose their own rhetoric as deceptive.

But you can also see why other Republicans, including House Speaker John Boehner, are refusing to go along with McConnell. They think Obama has undermined the Constitution by offering amnesties that Congress never authorized. Josh Blackman, a law professor, has set forth the constitutional case against Obama here and here. A federal court recently cast doubt on Obama's legal justification as well. Yet McConnell is asking Republicans to fund the department that would carry out the amnesty with no strings attached. Meanwhile his anti-amnesty bill is guaranteed to fall either to a filibuster or a veto.

There's a better way out. It would involve two bills, but not the two McConnell has in mind. The first would fund the Department of Homeland Security except for the immigration bureaucracy. The second would fund the immigration agency, but stipulate that no money could be spent carrying out the president's amnesty.

The first bill would presumably pass, so the department would keep working. McConnell would no longer need to worry that Republicans would be blamed for shutting it down, and especially for shutting down its counter-terrorism components. He would also achieve his objective of putting Democrats in a tight spot. And the White House would have to find talking points that don't involve terrorism.

The second bill would probably die. The immigration service is almost entirely funded by fees, so the administration doesn't need Congress to pass a bill to keep it running.

But no other strategy is likely to force Obama to abandon his policy, either. And Republicans would have avoided the two worst outcomes of this debate. They wouldn't have shut down the department or have affirmatively funded Obama's unconstitutional order. And they would have been able to present their argument in a clearer way. The debate would no longer involve all the non-immigration functions of the Department of Homeland Security, and it would no longer be dominated by intra-Republican squabbles.

Boehner is moving for a short-term extension of the department's funding. After it passes, if it passes, he should pick up the phone and talk to McConnell about a new path forward.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Ramesh Ponnuru at rponnuru@bloomberg.net

To contact the editor on this story:
Timothy Lavin at tlavin1@bloomberg.net