Brian Hughes | February 21, 2015
Critics say Obama lacks both the legislative and political means to deal with challenges to his executive order.
President Obama, who has hammered Republicans repeatedly for lacking an alternative to his most controversial policies, now finds himself in a similar predicament: He has no plan B if the courts invalidate his executive action on immigration.
The White House is now putting all its efforts into getting an emergency stay on a Texas federal judge’s order temporarily blocking Obama’s unilateral push to shield up to 5 million undocumented immigrants from deportation.
Obama wants his immigration plan to proceed while judges weigh a broader appeal by his administration to the ruling by U.S. District Judge Andrew Hanen, which upended a centerpiece of his second-term agenda.
Beyond those legal maneuverings, however, the White House has no fallback plan for how to move past a possible legal defeat that may be coming, according to court observers.
Multiple White House officials were unable to provide the Washington Examiner with a contingency strategy for how they would grant the type of deportation relief long demanded by immigration activists if the courts block Obama's current blueprint.
And one element of the president's proposed reforms was to ensure that our enforcement activities were focused on felons and not on families. We believe that these efforts should be focused on rounding up and deporting individuals that have a criminal history.”
But as long as Obama’s executive action remains stuck in legal limbo, the administration cannot issue work permits to undocumented immigrants banking on new protections from the federal government. Even more problematic, an unsuccessful appeal could kill those efforts altogether.
Obama would then undoubtedly struggle to answer a simple question: What’s next?
It’s an unwelcome twist of fate for a White House that has mocked Republicans for supposedly lacking ideas beyond repealing Obamacare and rolling back the president’s immigration power play.
To date, the White House narrative has been that Republicans have nothing to offer other than obstructionism and red meat for the conservative base. The natural counter now from GOPers is that Obama is only offering a legally-suspect executive action.
Obama faces a similar liability as the Supreme Court prepares to examine the constitutionality of Obamacare subsidies for individuals purchasing health plans through federal marketplaces.
On both immigration and healthcare, the White House insists that the onus is on Republicans to provide an alternative because so-called benefits would be taken away from Americans.
But critics say that Obama is now paying the price for lacking either a legislative strategy or the political capital to move an immigration bill through both chambers of Congress.
“This is what happens when you basically ignore the legislative branch,” a House GOP leadership aide told the Examiner. “He has nothing to fall back on. It’s not like he can make a new legislative push on immigration. The way this is playing out right now is the White House’s worst nightmare.”
Such complaints extended beyond conservative circles.
This is why the president should have done more on immigration in his first term,” said a veteran immigrant-rights advocate who has met numerous times with White House officials. “This could be a really lengthy legal battle. If we lose, we’re toast — he doesn’t have enough time left to do something major.”
Some progressives argue that Obama should have acted on immigration when Democrats controlled both chambers of Congress during his first two years in office. However, the president expended all of his political capital on the passage of Obamacare, leaving immigration on the back burner for years.
To be clear, Obama’s supporters insist they’ll prevail in a judicial challenge to the Hanen injunction. The Justice Department is expected to file its requested stay by Monday.
Still, those sympathetic to Obama acknowledge very real legal hurdles, particularly on the broader appeal to the ruling from the South Texas court. Most troublingly for Obama’s cause, the United States Court of Appeals for the 5th Circuit in New Orleans, which will hear the challenge, is made up primarily of conservative judges.
In addition to his legal troubles, Obama has a new messaging problem that could undermine his attempts to paint Republicans as the do-nothing party.
“Until they start wanting to walk and not just talk, we’re going to keep offering the American people something better,” Obama said of Republicans at the Democratic National Committee winter meeting on Friday.
Republicans were quick to issue a retort, thanks in large part to Obama’s judicial setback.
“Pretty soon, all he could have left on immigration and Obamacare is talk,” said the House GOP leadership aide. “And does anyone really believe he’s tried to ‘walk the walk’ on getting anything done with us?”
Obama’s challenge to stay the Texas federal judge’s ruling must be appealed to the 5th District Appellate Court in New Orleans. This court has a reputation for being one of the most conservative in the United States. The overwhelming opinion is that the court could very well uphold the ruling by the Texas judge. If so, any action on the President’s Executive Order could be held up for several months.
Jack Meehan, National President Emeritus
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