President Obama’s executive action to legalize 4.1 million illegal immigrants is protected from the annual appropriations process, according to a Congressional Research Service report dated Monday.
The report, done for House Rules Chairman Pete Sessions, R-Texas, and shared with the Washington Examiner, explains that U.S. Citizenship and Immigration Services activities are “primarily” funded through direct user fees, as opposed to an annual appropriation by Congress.
But the key point for Republicans as they deliberate tactics for confronting Obama on what they refer to as “executive amnesty” is that, per the CRS report, approval to use the fees for immigration services is provided for under current law and not subject to an annual re-authorization by Congress.
“Current law further provides a permanent, indefinite authority for use of the adjudication fees in that account for specified purposes. As a consequence, the authority to expend these fees is controlled outside the annual appropriations process and does not depend on annual action by Congress,” said a CRS report dated Dec. 8.
The report, shared with House Republicans on Wednesday morning, was discussed in a closed-door session about the $1.1 trillion “cromnibus” spending package. The bill, negotiated with Senate Democrats, ensures the government won’t shut down when the current continuing resolution expires Thursday night, funding the federal agencies other than the Department of Homeland Security through the end of the fiscal year Sept. 30.
Funding for DHS, which oversees immigration services, is set to expire Feb. 27. Carving money for DHS out of the rest of the omnibus and funding it through a continuing resolution that expires in February is designed to give the full Republican Congress that will be seated in January leverage to confront Obama on “executive amnesty.”
Republicans argue that the president’s unilateral move to halt deportations and grant work permits to 4.1 million illegal immigrants is an unconstitutional overreach of his authority.
Some Republicans have argued that funding DHS is akin to funding Obama’s executive legalization. Mostly members of the House GOP’s right flank, they also have pushed for policy riders to be attached to a funding bill designed to prevent a government shutdown that would prevent the administration from using the immigration services fees for Obama’s executive legalization.
Other Republicans emphasize that the program is funded by fees and the only way to attempt to stop it is to change the law. Waiting until the GOP takes control of the Senate in January is the smarter political move, they contend, as it guards against a government shutdown just prior to the holidays and puts the party on stronger footing to pass changes in the law and fight Obama in 2015.
These Republicans have pushed for the cromnibus as the best move as part of their broader immigration-fighting strategy. House GOP leaders told rank-and-file Republicans during Wednesday’s private conference meeting that they would fight Obama hard on the issue after the party takes control of the Senate.
A source who attended the meeting told the Examiner that the leadership “made very strong pitches and kept on the theme of, we will absolutely fight in February because of the president’s action and detailed in short a few options, like attaching their own immigration proposals to the funding of DHS, border security, defunding of his executive order. But the punch line was a passionate promise to fight in February.”
The CRS report notes that only a change in the law that passed both chambers of Congress and was signed by Obama himself would succeed in rolling back “executive amnesty.”
“An enactment of law would be required to alter these existing statutory provisions concerning the collection of the fees in the Immigration Examinations Fee Account, their availability for expenditure, or to prohibit their use for certain purposes,” the report reads. “Provisions of a bill or joint resolution to accomplish these purposes would be subject to the constitutional requirements associated with the lawmaking process, which include that the measure be presented to the president for his approval.
“Such an enactment would be within Congress’s constitutional authority to legislate.”
