Congress could use its power of the purse to halt President Obama’s executive action on immigration despite the president’s use of a fee-based agency to do most of the key work, the Capitol’s legal research team has concluded.
In a letter last week to Sen. Jeff Sessions, Alabama Republican, the Congressional Research Service said federal courts have recognized broad congressional powers to stop the president by denying him funding for his proposed actions.
As Congress prepares for a two-week dash to finish its business and end its session, the annual spending bills and the response to Mr. Obama’s immigration moves are two of the chief issues lawmakers must solve. They also must pass the annual defense policy bill, decide whether to extend a series of expired tax breaks and find money to support the president’s commitment of thousands of U.S. troops to Iraq.
“Congress has to stand up to protect our prerogatives,” said Rep. Tom Cotton, an Arkansas Republican who unseated a two-term Democratic senator in November’s elections and will ascend to the upper chamber next year. In an appearance Sunday on NBC’s “Meet the Press,” Mr. Cotton said the employment picture alone should be enough to rally Congress to block the president’s executive action.
“The president just lost an election, in no small measure because wages for working families are declining and unemployment is still too high in too many places, and the first big action he took after the election was to make it easier for illegal immigrants to get jobs, not for working families to get jobs,” Mr. Cotton said.
He said lawmakers have to decide what leverage to use against the president on immigration. Suggestions, he said, include tying all of this year’s spending bills to a decision to block the deportation amnesty, tying only homeland security money to the deportation amnesty, and kicking the issue into next year, when Republicans will control both the House and Senate.
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Sen. Ted Cruz, Texas Republican, has called on Senate GOP leaders to refuse to confirm almost all of Mr. Obama’s nominations to judicial or executive offices until the president rescinds his policy.
What’s getting the most attention and twisting Republicans in knots is the defunding strategy.
In late November, the House Appropriations Committee, which controls the spending process, released a statement pouring cold water on the defunding approach.
The committee said the annual spending process wouldn’t be able to curb U.S. Citizenship and Immigration Services, the federal agency that will handle most of the president’s amnesty. USCIS is almost entirely fee-based, which means it has sources of funding independent of taxpayers, and the House Appropriations Committee said that meant it had less leverage.
“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,” the committee said.
CRS analysts, though, said Congress does have power, even over fee-based agencies.
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In its letter to Mr. Sessions, the CRS said the Supreme Court has established that Congress can always dictate how an agency spends because all government revenue, even when collected by a fee-based agency, technically goes to the overall fund and is reappropriated to the agency.
“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 fund,” the CRS said.
Congress is scheduled to shut down by Dec. 11, leaving less than two working weeks for lawmakers to finish business.
Republican leaders are struggling with choices over which issues to clear now, while Democrats retain control of the Senate, and which issues to punt into next year. When the next Congress is sworn in, Republicans will have at least 53 seats and control of the Senate and a larger House majority.
December tax and spending deadlines loom, as does Mr. Obama’s call for expanding the war in Iraq to combat Islamic State terrorists. The president has called for more funding for his troop surge but also has asked Congress to debate and authorize a new grant of power for him to pursue the war on terrorism.
House Republicans would like to pass a bill to grant tax incentives allowing the disabled to stow money tax-free.
The House and Senate also may confront the thorny issue of detainees at Guantanamo Bay when Congress tackles the annual defense policy bill, which is considered must-pass legislation.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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