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DHS still faces shutdown if Congress can't agree this week

From left, House Minority Leader Nancy Pelosi, D-California, Senate Minority Leader Mitch McConnell, R-Kentucky, Senate Majority Leader Harry Reid, D-Nevada, and Speaker of the House John Boehner, R-Ohio, wait to speak during a ceremony on Capitol Hill, June 24, 2014 in Washington, DC.

Drew Angerer, Getty Images

Last Updated Mar 2, 2015 9:15 PM EST

Denied a longer-term deal by disputes over immigration, Congress agreed last Friday to extend funding for the Department of Homeland Security (DHS) by one week just minutes before that funding expired.

Whether lawmakers can agree on a more durable deal this week remains an open question. But with the clock again ticking toward a midnight Friday deadline, they have little choice but to try.

The Senate on Monday voted down a measure to send negotiations over DHS funding into conference with the House of Representatives, turning the attention to the House of Representatives, where a long-term deal to fund DHS has been elusive.

A spokesman for House Speaker John Boehner, R-Ohio, said the speaker was "disappointed" with the Senate's vote. "Now, we will talk with House Republican Members about the way forward," he said.

The Senate passed a bill funding the department through September last week by a vote of 68 to 31. That measure did not include language demanded by conservatives that would prevent President Obama from implementing his plan to shelter millions of undocumented immigrants in the U.S. from deportation by offering them work permits.

Senate Democrats have resisted going to conference with the House on the issue because they're concerned that the immigration restrictions could be shoehorned into whatever emerges from the bicameral negotiations. They've instead pushed House Republicans to simply pass the Senate's "clean" DHS funding bill.

"Now is the time to drop the partisan political games and come together to avoid a Homeland Security shutdown for the good of our country," Senate Minority Leader Harry Reid, D-Nevada, said in a statement last Friday. He called on House GOP leaders to bring the Senate's bill "to a vote immediately."

Boehner told CBS News' "Face the Nation" on Sunday that he'd like to see the two chambers confer on the issue, but he acknowledged that he's examining contingency plans.

"We want to get a conference with the Senate," he said. "Now, they've made clear that they don't want to go to conference. But they're going to have a vote. If they vote, in fact, not to get a conference, this bill may be coming back to the House."

Last Friday's one-week extension of DHS funding passed the House after House Minority Leader Nancy Pelosi, D-California, urged her rank-and-file to support it, telling members in a letter, "Your vote tonight will assure that we will vote for full funding next week."

Pelosi said she'd received assurances from the chamber's GOP leaders that the House would hold a vote on the Senate's clean funding bill. But Boehner's spokesman Michael Steel denied that any such promise was made, and the speaker himself told "Face the Nation" that "the promise made to Miss Pelosi is the same promise I made to the Republicans: that we will follow regular order."

One relatively obscure provision of "regular order," though, could allow the Senate's bill to come up for an up-or-down vote in the House without Boehner having to actually introduce the measure himself.

If the Senate votes down a conference committee on Monday, as expected, a clause in House Rule XXII would allow any member of the House, Republican or Democrat, to offer a "privileged" motion to force the House to vote on the Senate's bill.

That path becomes open, according to the House rules, "when a stage of disagreement has been reached on a bill or resolution." The Senate's refusal to enter conference negotiations with the House would signify such a disagreement.

If that procedural maneuver takes place, the House could conceivably pass the Senate's bill with ease, if a number of Republican moderates join with the chamber's 188 Democrats to secure a majority.

That result would defuse the DHS funding crisis, but it could also insulate Boehner from an insurrection among his caucus's most conservative members, who have warned the speaker not to bring the Senate's bill up for a vote.

The right wing of the House GOP demonstrated its clout last Friday, when 52 Republicans dealt Boehner a stunning defeat by voting down a three-week extension of DHS funding, sans immigration restrictions, that the speaker was pushing.

Some other Republicans, though, have scolded their party's right flank, urging lawmakers to simply get the issue off the table.

Rep. Peter King, R-New York, said Sunday there's "no doubt" the Senate bill would pass the House if it came up for a vote. "We cannot allow this small group to block it," he told ABC News. "Once ... this comes to a vote, we get it behind us, we go forward, then we really, as Republicans, have to stand behind the speaker and make it clear we're not going to allow this faction to be dominating and to be impeding what we're trying to do."

On Monday, the editors of the Wall Street Journal's opinion page, which leans conservative, urged Republicans to drop the issue and live to fight another day. "Once again the fight comes down to recognizing political reality, or marching off a cliff to almost certain failure," the editors wrote. "The smart play now would be for Republicans to fund DHS and move on to more promising policy ground."

To compound the uncertainty, the congressional fight over Mr. Obama's immigration policies could ultimately be rendered moot by the courts. A federal judge in Texas halted implementation of Mr. Obama's plan last week, ruling that the 26 states suing the federal government over the plan have the standing to mount their lawsuit. The administration has appealed the ruling.