The non-partisan Congressional Research Service has handed a potential road map to opponents of the president’s executive order on immigration as they try to thwart its implementation.
In a Nov. 21 memo to Sen. Jeff Sessions, R-Alabama, the research arm of Congress concluded that lawmakers do have the power to pass language that would block the use of fees to fund the work permits President Barack Obama is offering to more than 4 million unauthorized immigrants.
Green cards, naturalization and work permits are handled by U.S. Citizenship and Immigration Services, an agency that is part of the Department of Homeland Security and is funded by fees. Obama last week issued an executive order, suspending for three years the deportation process for as many as 5 million unauthorized immigrants and creating a route to seek legal work status.
As recently as last week the top Republican appropriator in the House of Representatives, Kentucky’s Hal Rogers, had said Congress does not have the power to block the agency since it is funded by fees and not a congressional appropriation. That prompted Sessions, who on Jan. 6 becomes the next chairman of the powerful Senate Budget Committee, to seek CRS guidance on the matter.
The research arm of Congress drew some distinction and hinted that the issue might likely end up in the courts. It noted that the Supreme Court has ruled that Congress can limit a government agency’s discretion on how it spends money, and noted that even fees collected are still subject to overall appropriations levels, anything that flows in over that goes into the general fund of the Treasury.
“To the extent that people would have made that argument, this quashes it,” insisted a congressional aide close to the Budget committee, demanding anonymity to speak about a memo that was not made public.
But the memo was not a complete slam dunk for Republicans. It said Congress has the power to block the use of fees depending on how the “surrounding statutory language” is written.
It concluded that “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.”
The memo ended with a nod to Sessions.
“But, 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,” it said.