The Heritage Foundation

Factsheet #153

December 2, 2014

December 2, 2014 | Factsheet on

Can Congress Use Spending Bills to Address President Obama’s Executive Actions on Immigration?

President Obama’s Executive Actions[1]

  • President Obama’s executive actions would defer the deportation of as many as five million illegal immigrants and allow them to apply to work in the country legally. The actions would largely be administered by United States Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security.

Congress has Broad Power through Appropriations

  • Congress has wide latitude to fulfill policy objectives through the appropriations process. As the General Accounting Office (now named the Government Accountability Office) explained: “In exercising its appropriations power, however, Congress is not limited to these elementary functions. It is also well established that Congress can, within constitutional limits, determine the terms and conditions under which an appropriation may be used. Thus, Congress can decree, either in the appropriation itself or by separate statutory provisions, what will be required to make the appropriation ‘legally available’ for any expenditure…. Congress may, and often does, use its appropriation power to accomplish policy objectives and to establish priorities among federal programs.”[2]

Fees Do Not Change Whether Congress Has Broad Power to Address the President’s Executive Actions

  • USCIS’s status as a largely fee-funded agency does not limit congressional authority to control the agency’s funding. A Congressional Research Service memo states that even if an agency is funded through fee collections, as USCIS is (in part), those collections “must still be appropriated by Congress to that agency in order to be available for obligation or expenditure[.]” Furthermore, fee-funded agencies are certainly not exempt from following statutory restrictions on expenditures: “[T]he 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.”[3]
  • USCIS is not “entirely” funded through fees. While it is true that a significant portion of the agency’s activities are funded with fees set by statute (requiring ordinary Article I legislation to amend), this does not represent the entirety of agency appropriations.[4] Furthermore, the enabling statute for the fee scheme notes that all monies from fees “shall be credited to the appropriation for the enforcement of this chapter for the fiscal year in which the expenses were incurred.”[5] In other words, Congress itself does not consider USCIS outside the appropriations purview.

Bottom Line

  • Whether by explicitly prohibiting the use of USCIS funds to implement the Administration’s policies, by amending the statutory fee schedule, or by reducing direct appropriations for USCIS, Congress’s power of the purse gives it authority over all aspects of federal governmental activity.

About the Author

Show references in this report

[1] “Executive Actions on Immigration,” U.S. Citizenship and Immigration Services, November 24, 2014, http://www.uscis.gov/immigrationaction (accessed December 1, 2014).

[2] “Principles of Federal Appropriations Law, Third Edition,” U.S. General Accounting Office, Office of the General Counsel, January 2004 (Internal citations omitted), http://www.gao.gov/assets/210/202437.pdf (accessed December 1, 2014).

[3] “Restrictions on Federal Funds Collected Through Fees or Otherwise Made Available,” Congressional Research Service, Memorandum to the Hon. Jeff Sessions, November 21, 2014.

[4] William L. Painter, “Department of Homeland Security: FY2013 Appropriations,” Congressional Research Service Report for Congress R42644, October 1, 2012, http://fas.org/sgp/crs/homesec/R42644.pdf (accessed December 1, 2014).

[5] 18 U.S.C. 1356(a).