The nonpartisan Congressional Research Service says that Congress does have the ability to defund President Barack Obama's executive action on immigration, contrary to what a top appropriator in the House said last week. The news may increase the likelihood of another government shutdown just as Republicans prepare to assume control of the U.S. Senate.
In a report addressed to Sen. Jeff Sessions (R-Ala.), a favorite for Budget chairman in the next Congress, and published Wednesday by Breitbart, the CRS noted that Congress can block funding for the agency responsible for carrying out the immigration order even if it operates independently on fees.
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.
Some conservative lawmakers have been considering passing a bill that would fund all the operations of the federal government except the U.S. Citizenship and Immigration Services. Funding for that agency would then be contingent on the president's willingness to rescind his executive action shielding millions of undocumented immigrants from deportation. Under such a plan, Republicans would avoid a costly government shutdown fight and still offer eager conservatives a viable way to counter the president. But the House Appropriations Committee, led by longtime Rep. Hal Rogers (R-Ky.), ruled out the tactic last week.
"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 in a statement.
That left Republicans with the much riskier option of attaching a "rider" to a spending bill with specific language to block the executive action. With the new CRS report in hand, however, the party can once again threaten to withhold funding for just the one agency. Regardless of how Republicans decide to move forward, either tactic is almost certain to face a presidential veto.
UPDATE: An Appropriations Committee aide tells HuffPost the CRS report says nothing different than the committee has already explained.
"In no way does the the CRS report contradict anything the committee has said," said the aide. "It would take an act of Congress to change the underlying statute to restrict the use of fees, not a simple 'defunding' provision on an appropriations bill, because the agency does not receive appropriated funds year to year."
The aide also pointed to a 2013 Department of Homeland Security report that explicitly states that under a "federal funding hiatus," or a government shutdown, USCIS employees continue to work because they are funded "by other than annual Appropriations."