Why Republicans Should Not Pass Any Immigration Bill This Month

Posted: Jul 17, 2014 9:45 AM
Why Republicans Should Not Pass Any Immigration Bill This Month

Sen. Ted Cruz (R-TX) told reporters last night that he would fight any immigration bill that did not contain legislative language repealing President Obama's Deferred Action for Childhood Arrivals.

“No legislation should be considered unless it specifically prohibits Obama from expanding” DACA, “which allows those who have come here illegally to stay,” Cruz spokeswoman Catherine Frazier told Breitbart News. “That should be a prerequisite for any bill considered to address this crisis.”

While Cruz's sentiment is appreciated, I don't see how any legislative language repealing DACA would change anything. Under current federal law, as written, Obama's DACA program is already completely illegal.

Obama is justifying his DACA program, and all of his many refusals to enforce immigration law, on his inherent presidential “prosecutorial discretion” power to pick and choose how federal law is implemented. Under this theory, Obama could functionally legalize every illegal immigrant in the country and not a single word in federal law could stop him. The only check on this power is political, not legal.

Not even Congress' power of the purse can stop Obama's total lawlessness. Testifying yesterday before the House Rules Committee, George Washington University law professor, and Democrat, Jonathan Turley detailed how Obama has used the judicial doctrine of standing to nullify Congress' power of the purse as well:

The "power of the purse" is the classic example of congressional power within the separation of powers. However, with modern appropriations rules, it has become something of a constitutional mythology in many cases. Due to modern budget rules, it is practically difficult for Congress to immediately alter government programs with appropriations changes. There are billions sloshing in federal budgets that can be moved to fill gaps in funding.
As reported by The Washington Post, "the Obama administration plans to use $454 million in Prevention Fund dollars to help pay for the federal health insurance exchange. That's 45 percent of the $1 billion in Prevention Fund spending available in 2013." The unilateral action to move hundreds of millions from an appropriated to a non-appropriated purpose led even leading Democratic Members to denounce the act as a "violation of both the letter and spirit of his landmark law." However that open disregard of the power of the purse resulted in nothing of consequence for the Administration. Congress was simply circumvented and the President effectively self-appropriated federal funds for his own priorities.

In other words, if Obama wants $3.7 billion to speed up the pace of illegal immigration into the United States, he has already asserted his authority to find that money himself. He does not need Congress at all.

Fortunately many conservatives are wising up to Obama's game.

“There are people in the House who fully believe that if the president isn’t willing to enforce current law, then why would we pass anything?” Rep. Jim Bridenstine (R-OK) told National Review's Joel Gehrke.

The sentiment is the same on the Senate side, where an aide told Gehrke, “The conservative position is for the president to do something first before we spend another dime. The president said [in 2012] that he was not going to deport children who are here illegally in this country; we now have a massive spike of children who are coming here illegally to this country.”

Until Obama admits his entire DACA program is blatantly illegal, and that his funding of Obamacare exchanges was also blatantly illegal, and then acts to enforce federal laws and appropriations as written (including telling insurance companies there will be no Obamacare risk corridor bailout), there simply is zero reason for Republicans in Congress to do anything.

Obama has repeatedly proven through both his actions and rhetoric that he could care less what federal law, or appropriations, say. He is going to do what he wants to do anyway.

Republicans must refuse to legitimize this farce.