Exclusive — Congressional Research Service: Congress Has Power to Block Funding for Obama’s Executive Amnesty

The Congressional Research Service (CRS) has concluded that House Appropriations Committee chairman Rep. Hal Rogers (R-KY) is wrong, and that Congress can in fact block funding for President Barack Obama’s executive amnesty order.

“In light of Congress’s constitutional power over the purse, the Supreme Court has recognized that ‘Congress may always circumscribe agency discretion to allocate resources by putting restrictions in the operative statutes,'” the CRS, a legislative authority on Capitol Hill, wrote in a report sent to incoming Senate Budget Committee chairman Sen. Jeff Sessions (R-AL). “Where Congress has done so, ‘an agency is not free simply to disregard statutory responsibilities.’ Therefore, if a statute were enacted which prohibited appropriated funds from being used for some specified purposes, then the relevant funds would be unavailable to be obligated or expended for those purposes.”

Sessions’ team provided the CRS report–which is not made public unless members of Congress who request such reports decide to make them so–exclusively to Breitbart News. 

Rogers, last week, argued that Congress could not block funding for Obama’s executive amnesty because the agency that will be printing the work authorization and other documents for illegal aliens–U.S. Citizenship and Immigration Services (USCIS)–operates primarily on fees it collects rather than from tax revenue collected by the federal government.

The House Appropriations Committee, which Rogers chairs, said in a statement last week:

The primary agency for implementing the President’s new immigration executive order is the U.S. Citizenship and Immigration Services (USCIS). This agency is entirely self-funded through the fees it collects on various immigration applications. 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. Therefore, the Appropriations process cannot be used to ‘de-fund’ the agency. The agency has the ability to continue to collect and use fees to continue current operations, and to expand operations as under a new Executive Order, without needing legislative approval by the Appropriations Committee or the Congress, even under a continuing resolution or a government shutdown.

But the CRS report that Sessions requested shows that is untrue. Even if an agency like USCIS operates on fees rather than tax revenues appropriated by Congress, the Congress can still block funding for the implementation of such matters as Obama’s executive amnesty. CRS wrote:

A fee-funded agency or activity typically refers to one in which the amounts appropriated by Congress for that agency or activity are derived from fees collected from some external source. Importantly, 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. In some cases, this appropriation is provided through the annual appropriations process. In other instances, it is an appropriation that has been enacted independently of the annual appropriations process (such as a permanent appropriation in an authorizing act). 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.

Cutting the legalese language here, basically this means that, no matter how USCIS gets it money–even if it’s from a prior authorization appropriation that is permanent and based on fee collection–Congress can still restrict the use of that money for some purposes.

On the night Obama announced the amnesty–last Thursday–Sessions said that the House of Representatives must lead by passing a government funding bill that blocks any money being spent on Obama’s amnesty.

“The House should send the Senate a government funding bill which ensures no funds can be spent for this unlawful purpose,” Sessions said. “If [Outgoing Senate Majority Leader Harry] Reid’s Senate Democrats vote to surrender their own institution to an imperial dictate and block the measure, then the House should send a short-term funding measure so the new GOP majority can be sworn in and pass a funding bill with the needed language.”

The Conservative Review’s Daniel Horowitz laid out on Tuesday how one of the things “lost amidst the hullabaloo of mob rule in Ferguson” is that the GOP is planning to “capitulate” to Obama’s amnesty. Part of that caving by Speaker John Boehner to Obama on executive amnesty, Horowitz notes, is that Republicans will promise to fight later–but won’t block the funding of it now.

“This strategy allows GOP leaders to promise a fight three months from now, after Obama’s executive action becomes more entrenched, without having to fight on defund immediately,” Horowitz wrote. “It will also buy them time to work on the second step: negotiating with Obama to pass amnesty legislatively.”

If Rogers–or other top allies of Speaker Boehner like 2012 GOP vice presidential candidate Rep. Paul Ryan (R-WI)–don’t block the funding of Obama’s executive amnesty, they could face dire consequences.

“Some Kentucky Tea Party activists are already talking about a primary challenge to Representative Harold Rogers, chairman of the Appropriations Committee, who has been in office since 1981,” the New York Times‘ Jeremy Peters wrote on Tuesday. “Breitbart News, a conservative website, reported on the possible primary challenger this week. Mr. Rogers’ office has said Congress could not simply defund the president’s directive, because the agency that carries it out, Citizenship and Immigration Services, is not financed by appropriations but by the fees it generates.”

Later in the story, Peters noted that Ryan and even Sen. Marco Rubio (R-FL) could face primary challenges in 2016.

“Other potential primary targets, Tea Party groups say, are Representative Paul D. Ryan of Wisconsin, the 2012 Republican vice-presidential nominee, and even Senator Marco Rubio, Republican of Florida, who was elected initially with the help of Tea Party energy,” Peters wrote.