Immigration Fight Has DHS|on the Verge of a Shutdown

HOUSTON (CN) - Congressional impasse over President Obama's executive orders on immigration has the Department of Homeland Security bracing for a shutdown at midnight Friday, which would idle all of the agency's 240,000 federal workers who are not deemed "essential."

If Congress does not pass a budget for the Department of Homeland Security by Friday at midnight the agency's funding will run out. Led by Speaker of the House John Boehner, Republicans threaten to reject or refuse to vote on the proposed $39.7 billion budget for DHS, unless Obama agrees to kill his orders protecting from deportation potentially millions of undocumented immigrants.

During the October 2013 federal shutdown, about 85 percent of DHS employees were deemed "essential," and continued to work without pay. About 31,300 DHS workers were furloughed during that shutdown, according to the Congressional Research Service.

Senate Majority Leader Mitch McConnell said Tuesday he would support a bill that funds DHS with no amendments attached, after Democrats thwarted GOP efforts to strip funding for Obama's immigration programs from the agency's budget. But House Republicans appear more intransigent.

If DHS funding dies Friday night, only "essential" staff will report for work - without pay - until funding is resumed. Estimates are that essential staff make up 20 to 25 percent of the DHS workforce.

It's unclear how much enforcement of Obama's executive orders will cost the government.

Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) would suspend deportation, during Obama's term, of immigrants whose parents brought them here as children, and of parents of U.S. citizens or lawful residents, if they can pass background checks and meet other qualifications.

University of Houston law professor Michael Olivas said the programs are "funded completely out of fees and not out of appropriations."

A DHS spokeswoman declined to comment on the cost.

Democrats in the House say they will support a "clean" DHS budget bill - one without restrictions on the executive orders. Boehner has shown little inclination to allow that. At least 20 Republican congressmen signed a letter to Boehner this week asking him to hold firm.

McConnell said he'll consider pitching the "Immigration Rule of Law Act" to defund the executive orders on immigration without doing the same to the DHS.

The DHS is comprised of several subagencies, including U.S. Immigrations and Customs Enforcement, U.S. Customs and Immigration Services and U.S. Customs and Border Protection. Also under DHS are the Coast Guard, the Transportation Security Administration, the Federal Emergency Management Agency, the Secret Service, the Office of Intelligence and Analysis, the Office of Health Affairs, the Domestic Nuclear Detection Office, and others.

In a recent interview, Customs and Border Protection Commissioner R. Gil Kerlikowske said there's a misconception that a DHS shutdown is no big deal because most of its workers are deemed essential, and would have to work without pay if Congress doesn't pass a budget.

"We process literally billions of dollars' worth of imports and exports. All of our support personnel that do a lot of that processing, import specialists and others. Those that process reimbursements that go back to small businesses and large, all of that would be shut down," Kerlikowske told CBP public relations commissioner Philip LaVelle in an interview posted on cbp.gov.

Kerlikowske said a shutdown would prevent his agency from getting almost $90 million worth of video equipment it asked for to monitor the Rio Grande Valley, ground zero for a humanitarian crisis last summer in which 68,000 unaccompanied children from Central America crossed into the United States.

Besides that, Kerlikowske said, CBP agents would be forced to support their families and pay bills with no income, which would damage workplace morale.

Most importantly, the nation's security is at stake because foreign criminals pay attention to what's going on in the U.S. government, Kerlikowske said.

"We know for instance that people, whether it's smugglers of human beings or smugglers of drugs or perhaps those who want to do us harm, they watch the media. They listen to these things and they know when this kind of climate may present a vulnerability to this country," he said.

The president has defended his executive orders on numerous grounds, including keeping families together and prioritizing deportation of criminals and recent border-crossers.

The administration also says the policy changes are needed to relieve pressure on immigration courts, which had 418,861 cases pending on Sept. 30, 2014, up from 262,622 in 2010.

A federal judge on Feb. 20 ruled that the administration's detention of people with a credible fear of harm in their homelands is illegal, and said they must be freed from immigration prisons. But even if they are, it will not relieve pressure on immigration courts, which still will have to process and rule on their applications.

DHS was set to start taking amnesty applications under Obama's executive orders on Feb. 18 but U.S. District Judge Andrew Hanen, in Brownsville, shut it down when he granted lead plaintiff Texas and 25 other Republican-led states an injunction.

The Republican-led states sued DHS Director Jeh Johnson and other top immigration officials, claiming Obama's orders infringe on powers reserved for Congress. The new DACA guidelines expand on an amnesty program with the same name that Obama unveiled in 2012.

Texas provides driver's licenses to DACA qualifiers and to anyone who can prove his or she is authorized to be in the country, and passes driver tests.

Hanen ruled that Texas has standing to sue because it will bear the cost of processing driver's licenses for qualifying applicants. Those who qualify may also be eligible for federal work permits.

The Justice Department claims that Hanen is plain wrong and that Texas lacks standing. On Monday it asked Hanen to stay his injunction while the issues are hashed out at the 5th Circuit. Justice said that if Hanen does not respond by 5 p.m. today (Wednesday) it will take its appeal directly to the 5th Circuit.

Hanen indicated Tuesday that he will not meet the Justice Department's deadline. He gave the Republican states until March 2 to respond to the government's motion to stay.

In that motion, government attorney Kyle Freeney wrote: "Defendants recognize that this court has credited Texas's claim that it will spend 'millions of dollars' to provide driver's licenses to future recipients of DAPA and modified DACA if the guidance is allowed to be implemented, and that the court has also found these costs attributable to the guidance.

"However, it is Texas state law that makes licenses available to such individuals. Texas is under no obligation to structure its licensing scheme this way as a result of any federal statute, let alone the challenged guidance."

Follow @cam_langford

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit