Analysis: Lawmakers can defund Obama immigration action
© Greg Nash

A report from the nonpartisan Congressional Research Service says that lawmakers have the power to defund President Obama’s executive action on immigration, reigniting a fight within the GOP.

“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,’” says a report by the research arm of Congress produced for Sen. Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump criticizes Justice for restoring McCabe's benefits McCabe wins back full FBI pension after being fired under Trump Overnight Hillicon Valley — Apple issues security update against spyware vulnerability MORE (R-Ala.), according to conservative website Breitbart News.


The research service produces reports for congressional offices on various policy matters.

The report comes a week after House Appropriations Committee Chairman Hal Rogers (R-Ky.)  said lawmakers lacked the authority to defund Obama’s order to defer deportations for as many as 5 million immigrants in the country illegally. Appropriators said the agency that would implement the order, U.S. Citizenship and Immigration Services, is self-funded through fees.

According to Breitbart, the report for Sessions says even fee-based agencies can be blocked from carrying out certain policies.

“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),” the report says.

“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.”

Conservative lawmakers, including Sessions, who hope to block or limit the president’s action in an upcoming spending bill, though, insist that House appropriators are wrong. They have called on Congress to block funding from going to the agencies in question. They worry that the immigration actions will be impossible to roll back in the future if Congress does not act now.

Republicans are weighing ways to prevent the immigration action while also avoiding a government shutdown. Lawmakers must pass a spending bill by Dec. 12 to keep the government funded and open. The report will likely embolden conservative critics, including Sessions, who is seeking the Senate Budget Committee gavel.

The Appropriations panel on Wednesday hit back, arguing that the Congressional Research Service study did not undermind its stance.

“In no way does the CRS report contradict anything that we've said. It would take an act of Congress to change the underlying statute to restrict the use of fees,” said an aide to the Appropriations Committee, noting that Congress does not appropriate funds to the agency in question year-to-year.

“To restrict the fees, a law would have to be passed, which means a presidential signature. Barring that, the agency can continue to collect and use fees without an annual appropriation, meaning that in the event of a government shutdown, the agency would continue to operate, while other functions of government close,” the aide added.

The president’s order will grant temporary legal status to certain immigrants in the country illegally and make other changes to the immigration system.