Congressional Republicans may have just received an important piece of ammunition in their battle to block enforcement of President Obama’s executive order shielding as many as five million illegal immigrants from the threat of deportation.
Since Obama announced his action in a nationally televised speech Nov. 20, Senate and House GOP leaders have explored tactics ranging from a series of short-term extensions of spending authority to hamstring the federal bureaucracy to writing a ban on the president’s new policy right into the appropriations language.
But House Appropriations Committee Chair Hal Rogers (R-KY) threw cold water on using the power of the purse to achieve the Republicans’ aims, saying that it would be “impossible” to defund the president’s unilateral action because the primary agency chiefly responsible for implementation is funded by user fees.
Rogers was referring to the U.S. Citizenship and Immigration Services, which is totally funded through the fees it collects and doesn’t depend on appropriated funds approved by Congress.
“Congress does not appropriate funds for any of its operations, including the issuance of immigration status or work permits, with the exception of the ‘E-Verify’ program,” the House Appropriations Committee said in a statement backing up the chair’s assertion. “Therefore, the appropriations process cannot be used to ‘defund’ the agency.”
But hold on. The non-partisan Congressional Research Service this week issued an analysis contradicting Rogers’s contention. The CRS concluded that Congress must still formally authorize the operating funds for the immigration agency, even if those funds are generated through fees.
“Amounts received as fees by federal agencies must still be appropriated by Congress to that agency in order to be available for obligation or expenditure by the agency,” CRS said in a report prepared at the request of Sen. Jeff Sessions of Alabama, currently the ranking Republican on the Senate Budget Committee and an arch foe of the president’s immigration action.
In some cases, Congress provides this type of authority through the normal annual appropriations process, the report said, while in other cases it is granted through a permanent appropriations contained in authorizing legislation.
“In either case, the funds available to the agency through fee collections would be subject to the same potential restrictions imposed by Congress on the use of its appropriations as any other type of appropriated funds,” the report stated.
The CRS findings appear to provide an important opening for Republicans as they map out plans for opposing or blocking Obama’s unilateral action. .
Regardless of what Republicans decide, Congress must act soon because the government’s current short-term spending authority is set to expire on Dec. 11.
“On its face, the suggestion that the White House can implement any unlawful and unconstitutional act so long as it pays for it with assessed fees is just plain wrong,” Sessions said in a statement. “The American people’s Congress has the power and every right to deny funding for unworthy activities.”
But nothing about the appropriations process -- or the president’s executive order, or that matter – is clear-cut at this point. The CRS analysis cautions that a lot depends on how restrictive legislative language is crafted, since whatever Republican lawmakers attempt to do could become grist for a court challenge.
“The context in which a restriction on funds collected through fees or otherwise made available is enacted will determine which agencies or activities will be subject to that restriction,” CRS stated in slightly opaque language. “It is at least a theoretical possibility that a court could find that such a restriction reached activities or agencies that were entirely fee-funded.”
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