Many Republican lawmakers are digging in their heels in the fight to defund implementation of what they see as an executive overreach by President Obama. They’re so entrenched in their position that they’re acting as though they’ll allow the Department of Homeland Security budget to not be adopted. Which in reality wouldn’t have much impact on DHS activities, as approximately 200,000 of the 230,000 DHS employees are considered essential. The Chicago Tribune reports, “Most training, hiring, research and purchasing would be suspended. Border security, disaster relief and cybersecurity programs would continue uninterrupted.” In other words, nothing will really change, except that “essential” DHS employees will work without a paycheck until a budget is adopted.

While House Speaker John Boehner is adamant that the Democrats are to blame, and has painted this as a Republican vs Democrats showdown, others disagree. The Chicago Tribune reports, “This isn’t a Republican vs. Democrat standoff. It’s a Republican vs. Republican standoff. Specifically, it’s the grown-up Republicans in the Senate vs. the hold-our-breath-till-we-turn-blue Republicans in the House.” Adding that Senate Majority Leader Mitch McConnell is urging Boehner to send the Senate a clean DHS funding bill.

The real issue here is positioning. Boehner wants to be seen as standing up to Obama, and seems to be standing solidly behind his bluff of allowing the DHS to go unfunded unless he can defund Obama’s immigration plan. McConnell wants to be seen as more moderate, and willing to compromise. So far, both men are playing their parts well.

The problem that both men face, however, is their insistence on preventing funds for an immigration plan they wrongly view as an unconsitutional overreach. First, the US Constitution does not authorize Congress to set immigration policy, only to “establish a uniform rule of naturalization”. Secondly, Article 1 Section 9 and Article V make it clear that the only way Congress could regulate immigration is to amend the Constitution. Thirdly, the 9th Amendment makes clear that the people retain all rights not specifically granted to the US government, this includes the right to migration. Finally, Article II, Section 2 of the US Constitution clearly states, “The President… shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Meaning that not only does the Congress not have authority to regulate immigration, but the President has the authority to pardon or reprieve a person who has violated a federal law. This includes the authority to delay punishment, which is essentially what President Obama has proposed with his Executive Order on immigration that would spare approximately 4 million undocumented immigrants from deportation.

Additionally, Republican outrage over “unconstitutional executive overreach” only applies to Democrats, and not to their fellow Republicans. The American Immigration Council reports, “Since at least 1956, every US president has granted temporary immigration relief to one or more groups in need of assistance.” Adding, “Some presidents announced programs while legislation was pending. Other presidents responded to humanitarian crises. Still others made compelling choices to assist individuals in need when the law failed to address their needs or changes in circumstance.”

The latest Executive Action by Obama is in the latter category. Despite the fact that one poll shows that half of Americans “disapprove of Obama taking immigration matters into his own hands.” Another poll shows “73 percent of Americans said Congress should focus on passing a comprehensive immigration reform package.”

Unfortunately, if/when the Congress does pass comprehensive immigration reform, it will most likely not be a policy that allows for maximum freedom in regards to human migration.