John Boehner would never cop to it, but his pending lawsuit against President Obama will be the final word on whether the GOP is the party of maximum deportations, including of immigrants eligible for the Obama administration's Deferred Action for Childhood Arrivals directive—the group of upstanding undocumented immigrants who were brought to this country when they were children known as "Dreamers."
Boehner will either include the DACA program among his list of the president's supposedly illegal executive actions, and thus cement his party's standing as one that represents the reactionary anti-immigrant minority in the country; or he'll leave DACA out, giving tacit consent to the program and infuriating the anti-immigrant faction of his own conference.
And he may have just tipped his hand toward the anti-immigrant bunch.
In a Sunday CNN.com op-ed, Boehner subtly alluded to his underlying thinking by making clear that his pursuit of legal action is a last resort—the end of a concerted legislative effort to rein Obama in, specifically with respect to his immigration policies.
"I don't take the House legal action against the President lightly," Boehner wrote. "We've passed legislation to address this problem (twice), but Senate Democrats, characteristically, have ignored it."
Boehner didn't name the two bills in the article. But his staff confirms that they are the ENFORCE the Law Act and the Faithful Execution of the Law Act, both of which were drafted with an eye toward reversing DACA. The former would expedite House and Senate lawsuits against the executive branch for failing to enforce the law. The latter would compel government officials to justify instances of non-enforcement.
The House Judiciary Committee's report (PDF) on the ENFORCE the Law Act is essentially a bill of attainder against the Obama administration, but it leans heavily on his enforcement of immigration law, and DACA specifically.
"[T]he Administration's policy effectively…means that the vast majority of undocumented aliens no longer need to fear immigration enforcement," the report reads. "Limiting the possibility of deportation in this manner eliminates entirely any deterrent effect the immigration laws have, and also states plainly that those laws can be ignored with impunity. The President has, in effect, suspended operation of those laws with respect to a very large and identifiable class of offenders."
Same goes for the Faithful Execution of the Law Act report. "For instance, while Congress is currently debating how to reform our immigration laws, the President effectively enacted the DREAM Act himself by ordering immigration officials to stop enforcing the immigration laws against certain unlawful immigrants."
It's true that the ENFORCE the Law Act report also lists grievances with the Obama administration's implementation of the Affordable Care Act, the contraception guarantee, his use of the recess appointment power and so on. And Boehner's spokesman Michael Steel cautioned me against assuming that DACA will be in the lawsuit.
But if the lawsuit is meant to achieve the same ends as these two bills, then omitting DACA would be a contradiction. The arrows in Boehner's op-ed point straight back to deferred action. Moreover, the Supreme Court has already weighed in (against Obama) on the issues of recess appointments and contraception, and lower courts are addressing issues surrounding the implementation of Obamacare already. Immigration enforcement is the biggest outstanding issue, and the one that most animates the GOP base. Last year, House Republicans passed a bill that would defund DACA. Leaving it out of the lawsuit would run at odds with all of the GOP's past actions. But including it—suing the president to deport Dreamers—would doom the party's already floundering efforts to rehabilitate its standing in immigrant communities.
Brian Beutler is a senior editor at The New Republic.