Republicans Can Defund Obama’s Executive Order, They Just Don’t Want To
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Republicans Can Defund Obama’s Executive Order, They Just Don’t Want To

President Barack Obama’s executive order on immigration hasn’t even been issued yet, and already congressional Republicans are desperately trying to come up with reasons why they’re powerless to do anything about it.

Here’s what the House Appropriations Committee spokesman told The Hill earlier today:

It would be “impossible to defund President Obama’s executive order through a government spending bill, House Appropriations Committee spokeswoman Jennifer Hing said Thursday.

Congress doesn’t provide funding to U.S. Citizenship and Immgiration Services (CIS), the agency responsible for issuing work permits and green cards. Instead, the agency is funded through fees.

“We cannot, literally cannot, defund that agency in an appropriations bill because we don’t appropriate that agency. That agency is entirely-fee funded,” Hing told reporters.

“As of right now, our understanding is the primary agency responsible for implementing any type of executive order is CIS and we don’t fund CIS. There are no appropriated dollars,” she added.

That is absolute nonsense. The notion that Congress can turn on a money spigot but is banned from turning it off is nonsense. And the worst part is that it’s willful nonsense. There is simply no law whatsoever that says that the House is only allowed to X and Y but not Z on an appropriations bill.

Archer Can't Or Won't

Now why would appropriators be so invested in pushing something completely false about the Congressional power of the purse? Easy. They don’t want another defund/shutdown fight. I get that. I understand that a lot of Republicans think the 2013 shutdown seriously hurt the long-term interests of the party. I don’t agree with it, but I understand that concern. But what’s happening right now is that rather than just saying, “We don’t want another defund/shutdown fight,” appropriators are dishonestly pretending that even if they wanted one, it’s impossible. Which is balderdash.

The excuse they’re trying to make is that because the USCIS, the U.S. Citizenship and Immigration Services, is funded primarily by mandatory, rather than discretionary spending, that they have no way to whack it with an annual appropriations bill. USCIS is funded by fees it collects, the argument goes, and since those fees aren’t subject to annual appropriations, Congress can’t monkey with them in an annual appropriations bill.

It’s a clever little argument. Completely wrong, but clever. What these appropriators want you to believe is that “not subject to annual appropriations” and “cannot be changed via an appropriations bill” are synonymous. They’re not.

They’re correct that USCIS spending is funded primarily by fees collected by the agency, and that the spending is mandatory, rather than discretionary. That means that USCIS does not need annual authorizations to use those fees to offset expenses. This is actually written into the 1882 law that first established the fees and the authority of the federal government to spend them (the current authority can be found in 8 USC 1356(m)):

1882 Immigration Fund

The only thing that differentiates mandatory and discretionary spending is how often each must be re-authorized. Every single dollar spent by the federal government must be first appropriated by Congress. Just because some spending is not subject to annual appropriation doesn’t mean it’s not subject to appropriation at all. Congress can’t block Obama’s executive order by shutting down the government, but it most certainly can defund it by law.

Congress adds riders and prohibitions to appropriations bills all the time. Why? Because it can. That’s kind of the whole purpose of Article 1, Section 9 of the U.S. Constitution:

No money shall be drawn from the treasury, but in consequence of appropriations made by law[.]

And from that power of the purse come the most powerful words in federal law: “Notwithstanding any other provision of law, no funds shall be appropriated or otherwise made available for ______.”

That’s it. That’s literally all it takes. It doesn’t matter if the spending is mandatory or discretionary, good or bad, wasteful or essential; when that sentence becomes law, it nukes whatever spending it touches up until the point at which that sentence is repealed or superseded by a future law.

Republicans can add defunding language to any bill whenever they so choose. The issue is not that they can’t use the power of the purse to block Obama’s lawless power grab. The issue is that they don’t want to. The real shame is that they can’t even be honest about that.

Sean Davis is the co-founder of The Federalist.
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