Appropriations Chair: Immigration Order Can't be Defunded Through Spending Bill

Republicans' options to rebut President Obama's expected executive order on immigration are narrowing, as leaders remain under pressure by some in their caucus to limit his ability to give work permits to undocumented immigrants.

Speaker John Boehner and his team said they are considering all avenues to limit the scope of Obama's order, which he is expected to announce Thursday night at the White House. Those include an amendment to a funding bill blocking the government from spending money or resources to enact the order, a bill next year that would retroactively block the funding or targeting the order in a lawsuit being initiated against Obama.

Yet party leaders said Thursday that none of the options are ideal.

Appropriations Committee Chairman Harold Rogers, who has been trying to construct an omnibus appropriations bill that would continue funding the government into next year, said that a spending amendment could not target the funds needed to carry out the executive order.

"To alter or change the fee matter, it would take a change of law," he said.

U.S. Citizenship and Immigration Services, the agency within the Homeland Security Department most likely responsible for enacting Obama's order, is largely funded through application and petition fees. Congress doesn't appropriate any funds to the agency, according to Jennifer Hing, Rogers's spokeswoman.

"It would be impossible to defund anything on an appropriations bill if we, in the first place, provide no funds for that agency," Hing said.

What this means is that defunding Obama's executive action isn't as easy as adding such language to a short-term or long-term spending package. The underlying statute could be changed, but that would necessitate an authorization bill, and this has been communicated to leadership, Hing said.

Sen. Jeff Sessions, the top Republican on the Senate Budget Committee, pushed back hard against the notion that Congress could not use the appropriations process to stop Obama.

"On its face, the suggestion that the White House can implement any unlawful and unconstitutional act so long as it pays for it with assessed fees is just plain wrong. … There is no question that Congress has the power to block this expenditure and no doubt that it can be done," Sessions said in a Thursday afternoon statement.

Other members echoed Sessions's point. Rep. Steve King said he has language written that he believes would adequately block Obama's order in an appropriations bill.

"We could write language ... that would say, 'No funds appropriated in this legislation shall be used to carry out,'—and we can identify, then, the president's edict —'and no fees generated by any agency shall either be used to fund the president's unconstitutional edict,' " King said.

Rep. Lou Barletta also said he believes there is a way to target the funding, and he noted that he told leadership that he will introduce freestanding legislation Thursday that would bar DHS from issuing the permits Obama plans to grant.

"I think my bill stops it dead in its tracks, basically saying that the president, if he grants amnesty to illegal immigrants, that they cannot be issued work permits—period—by the Department of Homeland Security," Barletta said.

Last week, Rep. Matt Salmon, along with 62 cosigners, sent a letter to Rogers and Appropriations ranking member Nita Lowey calling on appropriators to block the executive action using the power of the purse. Specifically, he asked them to prohibit providing money for Obama's intent to give work permits and green cards to undocumented immigrants—two duties of U.S. CIS.

But voices in the party are cautioning members against toying around with government funding. Rep. Dennis Ross, a deputy GOP whip, said the president is trying to bait Republicans into overreacting, and he and others in leadership have been cautioning their members against doing so because it could spur an electoral backlash.

"As long as we keep the funding out there, we play into the president's hand of a government shutdown. And, hell, that's what he wants us to do," Ross said. "We've got to be careful about what expectations we give the American people.… Yes, we start with the purse strings over here. Yes, he have the Senate, but we don't have it yet. And we've got to be able to fund the government. We don't want him to take executive action, and we might be able to affect that, but at what risk do we try to stop that?"

House Minority Whip Steny Hoyer took offense Thursday at the insinuation that the president is trying to bait Republicans into a standoff for political reasons. He said Obama is purely interested in what is best for the country, immigrants, and their families.

"They're wrong, dead flat wrong, and none of you ought to take that credibly," he told reporters. "Any suggestion that this is done to bait the Republicans into continuing to do irresponsible things is patently without merit."

If Republicans decline to use the appropriations process to block Obama, they could wait until next year and attach a provision to a non-appropriations bill that would limit funds to enact the order.

But that option, referred to as rescission, is not ideal either, Ross said. Even next year when Republicans control the Senate, they will not have a filibuster proof 60-vote majority to pass a bill targeting the executive action. Furthermore, the president would almost certainly not sign any bill rolling back his order.

That leaves the lawsuit. Republicans are suing Obama over his delay of the mandate in the Affordable Care Act that employers provide their workers with insurance. And aides have said that Boehner is considering adding the executive order to the scope of the suit because it fits the theme of executive overreach.

But Jonathan Turley, the lawyer just signed up to represent the House in the suit, has said that the easiest way to lose the case would be to turn it into a "peddler's wagon with every possible grievance against the president."

It remains unclear whether Boehner would agree to add the executive action to the lawsuit.