Back to Basics: Keep ‘Em Separated | Commentary
By Michael Boland A prediction: Within a week, the president will sign an appropriations bill extending funding for the Department of Homeland Security.
Recently, a federal district court judge in Texas doused (but didn’t extinguish) the hottest populist political fire in America by finding the president violated federal procedural rules when the president issued the second of his two executive orders halting the deportation of undocumented persons. The Obama administration declared it would abide by the injunction and vowed to appeal to the 5th Circuit Federal Court of Appeals.
Just prior to the congressional recess, the Senate was unable to debate a House-passed funding bill for DHS because Senate Democrats filibustered the “motion to proceed” over objections to provisions in the House bill vacating the president’s two executive orders on immigration policy.
It is also a setback for the Republican “anti-amnesty” caucus in Congress. The judiciary has the legal issues now, and that’s as it should be.
The “anti-amnesty” caucus ought to release its hostage — funding for programs to combat terrorism within the United States — and let the courts do their job. After all, the primary claim against the legality of President Barack Obama’s executive orders is that he usurped the power of Congress. Only Congress can appropriate; they ought to do their job, not the job of the judiciary.
Interestingly, the judge declared that the president violated the 1946 Administrative Procedure Act, rules which control how the Executive Branch may propose and establish regulations and which established a process for the federal courts to review agency decisions. The judge did not rule on the constitutional issues presented by the plaintiffs, the attorneys general of 26 states.
Will the self-proclaimed “constitutionalists” inside the Congress recognize that this judge’s decision is a victory for their cause, resetting our three co-equal branches of government back within their separate boundaries?
This judge’s decision is also an opening for Senate Majority Leader Mitch McConnell of Kentucky to use a procedural reform initiated by then-Senate Majority Leader Harry Reid, D-Nev., to resolve the current Senate impasse peacefully.
In January of 2013, by a strong vote of 78-16 (with six not voting), the Senate adopted Senate Resolution 15, a rule applied only during the duration of the 113th Congress, to limit filibusters over the motion to proceed in order to allow the Senate to debate and vote upon a bill on its merits. Reid was the author of Senate Resolution 15. McConnell voted for it. Let’s call it “Reid’s rule.”
Today, we are five weeks into the 114th Congress, and Senate Resolution 15 expired in December.
McConnell, a master of Senate procedure, will revive Reid’s rule from two years ago, at least rhetorically, to change the attitude of the current Senate debate over whether to debate funding DHS for the balance of the current fiscal year.
Under Reid’s rule, the minority did not surrender its right to filibuster amendments on a bill or the final Senate passage of a bill; rather, the Senate structured itself to allow four hours of debate on a bill to proceed, with time equally divided, but disallowed the very filibuster battle Reid is waging today.
Will Reid now accept Reid’s rule?
Not incidentally, since the courts now have possession of the legal issues swirling around the president’s executive orders, it is also logical to foresee the current Senate voting to strike the House provisions blocking funding for the president’s executive orders at least as long as the judiciary’s injunction on those orders is in force.
If so, will the House pass the DHS bill without those provisions when it returns? By then, just days from today, the issue will change again.
Will the House shutdown funding for the domestic anti-terrorist agency now that the courts are in charge of the legal issues?
Michael Boland is the principal and founder of Dome Advisors.
The 114th: CQ Roll Call’s Guide to the New Congress
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