The Senate is preparing to send a clean DHS spending bill to the House, whether GOP leaders there want it or not.
Mitch McConnell has handed John Boehner a near-impossible decision.
After weeks of public back-and-forth with the House speaker over which chamber needed to act first, McConnell on Tuesday began to move on his own to fund the Department of Homeland Security. If it succeeds, the Senate majority leader's plan will put Boehner and his fellow GOP leaders on an island, with a path loathed by conservatives that would require massive help from House Democrats to pass.
McConnell's new gambit sends the ball right back into Boehner's court, whether the speaker wants it there or not. Boehner has said that he is "certainly" ready to allow DHS to shut down if Senate Democrats do not back changes to White House immigration policy, while McConnell has been adamantly against a shutdown.
The predicament is the same one Boehner has faced repeatedly as speaker: His massive majority is packed with conservatives uninterested in any hint of compromise with the minority, but such deal-making is required to get any must-pass legislation through the more narrowly-divided Senate.
Members of the House GOP leadership team began discussing their options anew on Tuesday evening, as they and their rank-and-file members streamed back into Washington. Nothing will be finalized until leaders meet privately with their conference on Wednesday morning.
"We're waiting on the Senate to act," said Chief Deputy Whip Patrick McHenry, exiting a leadership meeting. "We'll see what the Senate's able to produce and we'll react in kind."
Boehner's past offers little clear guidance on his next move; over the last several years, he has chosen disparate paths when presented with a fork in the road. In 2013, despite his own admission that it was not his chosen strategy, he capitulated to members' demands that they shut down the government over objections to funding President Obama's health care law. Before that, however, he and his team crafted solutions on a bipartisan basis to avoid a default on the nation's debt, despite pressure from some in his conference to keep fighting.
A group of House conservatives is privately mulling blocking the House's ability to vote on any clean DHS funding bill by opposing the rule—a move that would especially anger GOP leaders who view such rule votes as a basic test of party loyalty. Outside conservative groups, such as Heritage Action, have said they will consider a "Yea" vote a black mark on members' legislative scorecards. And late Tuesday, several Republicans, led by Rep. Jeff Duncan, sent a letter to Boehner, Majority Leader Kevin McCarthy, and Majority Whip Steve Scalise urging them to continue to stand firm against what they call Obama's executive overreach.
"The Legislative Branch has a responsibility to use its exclusive and constitutionally-granted authority to prevent the President's unlawful usurpation of power, without waiting for a final interpretation from the Judicial Branch," the letter read. "District Court rulings can be overturned, but the power of the purse is absolute."
McConnell and Boehner are dealing with two very different realities. The new Senate majority leader has just 54 members to work with and will need six Democrats to join them in order to pass anything through the upper chamber and return it to the House. After trying to follow the House's lead over the last two months, in a strategy one of his own senior members called "the definition of insanity," McConnell struck out on his own Tuesday.
"Our friends in the House have been saying it's up to the Senate. And they're right," McConnell told reporters Tuesday, pivoting rhetorically. "I mean, because Senate Democrats have been preventing us from going forward on the DHS bill."
McConnell's new plan is to have a separate vote to defund Obama's executive action, giving Democrats—who have filibustered previous attempts to pass a bill keeping DHS open—the clean funding bill they've been asking for.
The plan will ensure that DHS is funded before the deadline, and could well attract the necessary Democratic votes on the anti-executive order measure as well. At least nine Democrats have indicated a level of discomfort with Obama's executive action and, Republicans hope, at least six of them will vote for the standalone bill. Already, Sens. Claire McCaskill and Joe Manchin have said they will vote to allow Republicans to move forward with the immigration bill, though McCaskill is undecided on the actual legislation.
But Democratic leaders balked at McConnell's plan Tuesday, vowing to continue their filibuster even of a clean DHS bill until they receive assurances from Boehner that he can get his members on board with the two-pronged approach.
McConnell told reporters Tuesday that he didn't "know what the House will do." Spokesman Don Stewart wouldn't say whether his boss had informed Boehner of the new plan before he made the announcement, though he said that the two talk frequently.
One new factor in all of this entered the equation last week, while Congress was in recess: A Texas judge placed an injunction barring the administration from carrying out Obama's executive action granting legal work status to millions of undocumented immigrants.
Although the administration has appealed the ruling, some Republicans are hoping the fact that the White House cannot enact its immigration changes for the time being could grease the gears for a legislative solution averting a partial DHS shutdown. Before McConnell's move Tuesday, talk behind closed doors on the House side had turned to funding a bill that could attract enough Republican votes to maintain leadership's credibility while perhaps siphoning a few Democrats from House Minority Leader Nancy Pelosi's so-far airtight opposition.
One new option House Republicans are starting to discuss privately is a DHS funding bill containing a provision that would trigger a funding ban to U.S. Citizenship and Immigration Services, the DHS agency tasked with granting documents to the immigrants, only in the case that the judge's injunction is lifted. It is unlikely, however, that Senate Democrats would receive such a solution any more favorably than the last House-passed DHS funding bill, and with funding set to lapse at week's end, the House may not have time to send such a bill to the Senate.
Short of a crafty legislative maneuver that can draw Democratic support, House Republicans may be forced to accept what McConnell said he may send them this week: a clean bill funding DHS through the end of the fiscal year. With House Democrats on board, Boehner would need to convince just a few dozen of his more moderate members to pass the legislation, but he runs the risk of further infuriating conservatives who insist that the appropriations bill is the best leverage they'll have to defund Obama's executive action.
The House could also counter with a shorter continuing resolution, funding the department at its current levels for perhaps three months, that would allow them to revisit blocking Obama's executive action more quickly. Yet internal and external pressure on Boehner may make even that move politically impossible.