The Constitution is unambiguous about which branch of the federal government has the authority to make laws governing immigration and control all money spent from the Treasury. It is Congress.
Article 1, Section 8, Clause 4 gives Congress the power to "establish an uniform Rule of Naturalization."
Article 1, Section 9, Clause 7 says: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."
For President Obama to succeed in carrying out his plan to unilaterally change the status of illegal immigrants, two things must happen: 1) He must usurp the constitutional authority of Congress to make immigration laws, and 2) Congress must decline to use its constitutional power of the purse to stop him.
Now a third thing could happen: The Republican-controlled House, led by Speaker John Boehner, may not only decline to use its power of the purse to stop Obama from usurping authority over immigration laws, it may also try persuade the nation it does not actually have that power when it comes to immigration laws.
On Thursday, a New York Times blog published a statement from the House Appropriations Committee that suggested Congress had no control over the funding of the U.S. Citizenship and Immigration Services and that therefore the agency could "expand operations as under a new executive order" no matter what Congress said in a continuing resolution to fund the government.
I contacted the committee via email to confirm the statement published by the Times and to ask if the committee believes that Article 1, Section 9, Clause 7 of the Constitution applies to CIS.
The committee sent me verbatim exactly the same statement that had been published by the Times. It said:
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"The primary agency for implementing the president's new immigration executive order is the U.S. Citizenship and Immigration Services (USCIS). This agency is entirely self-funded through the fees it collects on various immigration applications. Congress does not appropriate funds for any of its operations, including the issuance of immigration status or work permits, with the exception of the 'E-Verify' program. Therefore, 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."
Responding on background, a committee staffer said in an email: "You could 'defund' the CIS, but it would take an authorization/change to underlying statute that impacts their use of fees. This is an authorization issue, not an appropriations issue."
"Even if such an authorization change were to be attached to an omnibus bill via a rider, the president would veto the bill, and the government would shut down," said the staffer. "At that point, the CIS would still not be defunded and would continue to operate, given that it is fee-funded."
I followed up by sending the staffer a passage from Justice Joseph Story's "Commentaries on the Constitution of the United States." Story was named to the court by President James Madison, a leading Framer of the Constitution.
"The object is apparent upon the slightest examination," Story wrote about the Article 1, Section 9 power of the purse. "It is to secure regularity, punctuality, and fidelity, in the disbursements of the public money. As all the taxes raised from the people, as well as the revenues arising from other sources, are to be applied to the discharge of the expenses, and debts, and other engagements of the government, it is highly proper, that congress should possess the power to decide, how and when any money should be applied for these purposes. If it were otherwise, the executive would possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure."
I asked: "Is it not a different thing to say the president would veto it than to say the committee does not have the power to stop the expenditure of funds on this? Also, does the committee reject Joseph Story's interpretation of Article 1, Section 9, Clause 7 when he said that it applied to "all the taxes raised from the people, as well as the revenues arising from other sources"? ... Does the committee believe that fees collected by a federal agency and then drawn from the Treasury and spent are not covered by its power under Article I, Section 9, Clause 7?"
Speaking again on background, the committee staffer responded via email: "As per the underlying statute, CIS is funded outside of appropriations. The fees are collected and spent according to the underlying authorization (The Immigration and Nationality Act), and are not subject to the appropriations process. Congress can indeed change CIS's ability to collect and spend fees, but it would require a change in the authorization."
Three observations:
1) If Obama spends "fees" collected into the Treasury by CIS to implement unilateral executive actions he is not acting on the "underlying authorization," he is defying it.
2) It does not matter whether the government brings money into the Treasury through a tax, a fee or selling debt to the People's Republic of China, the Constitution says: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."
3) It appears that Republican congressional leaders do not want to take any effective action to protect either the constitutional authority of Congress to make the immigration laws or the power of the purse that protects Americans against a president spending money from the Treasury "at his pleasure."
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