LAST WEEK, Congress narrowly averted shuttering the Department of Homeland Security (“DHS”) – a department with 240,000 employees that oversees border and airport security, the Secret Service, and dozens of other critical government functions. With just hours before funding for the department was set to expire, Congress approved a one-week funding extension, which meant that the Hill would be faced with the same set of bad choices and another DHS shutdown deadline on March 6. But with pressure mounting and the new deadline looming, the House passed a bill Tuesday afternoon funding the DHS for the rest of the fiscal year, sending it to President Obama for his expected signature.
Funding for the DHS was being held hostage by House Republicans, who were attempting to use the DHS appropriations bill to thwart President Obama’s executive orders on immigration. On January 14, House Republicans approved a DHS funding bill that it fully knew had no chance of passing the Senate or being signed into law. The bill – which included poison-pill riders defunding President Obama’s executive orders on immigration policy– was taken up three times in the Senate; and three times it was filibustered by Democrats, just as House Speaker John Boehner and every other member of Congress knew it would be.
Republicans characterized their insistence on conditioning DHS funding to the Obama Administration’s acceptance of poison-pill riders as one of principled opposition to executive overreach. “Regardless of how we may feel about immigration issues generally, the issue at hand is the preservation of the separation of powers and the preservation of the Constitution,” thirty House Republicans wrote in a letter to Speaker Boehner last week. “Now is the time to stand firm against these unlawful executive actions.”
The appropriate way to “stand firm against these unlawful executive actions,” however, is through a legal challenge in the federal courts. Indeed, such a challenge is already underway – last month, a federal judge temporarily blocked DHS from implementing Obama’s executive order while the case goes forward. But it is entirely inappropriate to attempt to restrain executive authority through the use of limitation riders on an appropriations bill. In fact, there is a powerful argument that by doing so, Congressional Republicans have subverted the Constitution and the entire notion of the separation of powers.
Article I of the U.S. Constitution grants all legislative powers to a bicameral Congress: a House of Representatives and a Senate that are the result of a “Great Compromise” seeking to balance the effects of popular majorities with the interests of the states. Thus, while the other branches of government may have influence in the legislative process, the engine of legislative ideas and action is Congress itself. Once both chambers of Congress have each agreed to the legislation in the same form, it is “enrolled” – that is, prepared in its final official form – and then presented to the President. If the President signs the legislation into law (i.e., the bill is not vetoed), Congress’s participation ends.
Bills that are ultimately enacted are delivered to the Office of the Federal Register at the National Archives, assigned a public law number, and included in the next edition of the United States Statutes at Large. It is then up to the Executive to enforce the laws. The Vesting Clause of Article II provides that “[t]he executive Power shall be vested in a President of the United States of America.” The Constitution further provides that the President “shall take Care that the Laws be faithfully executed.”
As the Supreme Court has articulated, “Congress can thereafter control the execution of its laws only indirectly – by passing new legislation.” Despite the evident clarity of these words, Congress from time to time has attempted to command the Executive to adopt one or another interpretation of a substantive statute, often through the use of limitation riders to appropriation bills – that is, provisions that specifically prohibit the use of funds for designated activities.
Congress’s power to appropriate – or fail to appropriate – money for the operations of the other two branches of the government is one of its most potent weapons. Article I of the Constitution places the power of the purse in the hands of Congress: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” This potent weapon can be used as a shield or as a sword, facilitating Congressional resistance to unwelcome intrusions by another branch or enabling forays into their territory.
But the essence of this power is double-edged, and the Framers were well aware of the potential problems that might arise from the placement of the “power of the purse” exclusively within the domain of Congress. George Mason of Virginia – who ultimately refused to sign the Constitution – predicted that the House would adopt “the practice of tacking foreign matter to money bills.” Similarly, James Wilson of Pennsylvania warned that “the House of [Representatives] will insert other things in money bills, and by making them conditions of each other, destroy the deliberative liberty of the Senate.”
Despite these premonitions, however, the Framers could not possibly have envisioned the position appropriation riders occupy today. Military activities in Southeast Asia, public funding of abortion, air bags for automobiles, tax-exemptions for discriminatory schools, religious activities in the public schools, and public funding of school desegregation are but some of the areas affected by limitation riders.
The extent of the executive power, and the nature of the laws the President is bound to execute, is a matter of some debate. But, as Archie Parnell has written, “[i]f the power to execute the laws means anything, it is that neither Congress nor individual congressmen may interfere with the executive decisions of administrative agencies as to how they interpret the laws already in force.” The use of limitation riders, thus, raises important constitutional concerns, particularly with regard to the separation of powers.
That’s because through the use of limitation riders, Congress is essentially directing the implementation of laws it has already passed without amending the underlying statutes. In other words, having already made its choice in enacting legislation, Congress, through a limitation rider, is now working to interpret and implement existing laws. This Congress may not do. Limitation riders, insofar as they operate to prevent the Executive from fulfilling its constitutionally mandated duty to take care that the laws are faithfully executed, are a blatant subversion of the notion of separation of powers.
In the realm of immigration, Congress has exercised its legislative power, in part, by enacting the Immigration and Nationality Act (INA). The INA is a comprehensive set of rules governing the admission of foreign nationals into the United States and the conditions of such aliens’ continued presence in the country. While in some cases the INA provides the Executive with clear statutory guidance, in the majority of instances there are few, if any, limitations on the authority granted to the Executive. This is particularly true of the Executive’s enforcement discretion – i.e., the Executives independent authority in assessing when, against whom, how, and even whether to prosecute apparent violations of federal law. The Obama Administration has exercised this discretion by granting deferred action to otherwise removable aliens. The best-known example of this is President Obama’s DACA initiative, but the president’s most recent executive actions on immigration policy also fall into this category.
It is sometimes argued that there is no difference between Congress’s failure to fund execution of the laws pursuant to a particular interpretation of those laws, and Congress’s failure to fund the execution of the laws in general. To the extent there is any distinction, according to this view, it is one of quantity, not quality. This argument is misguided. While inadequate funding may hamper the Executive in its duty to execute the law, it does not subvert the rule of law in the way that limitation riders do. Limitation riders are a direct affront to the notion of separation of powers because they impose Congress’s will unilaterally, and encroach upon the Executive’s constitutional authority to faithfully execute the laws that Congress has passed.
Congressional Republicans’ attempt to deny funding to President Obama’s executive actions, therefore, apart from representing the Republican Party’s bankrupt position vis-à-vis immigration reform, is a direct and unconstitutional violation of the separation of powers.
The concept of the rule of law requires those who enact legislation to refrain from executing it. If Congress wants to clarify the INA, or otherwise deal meaningfully with the underlying issue of 11 million undocumented immigrants, it can. By passing an immigration bill. In the words of former President Ronald Reagan: “If the Congress disagrees with a statutory interpretation advanced by the executive branch – or with the efforts of the executive branch to defend or prosecute judicial action based on that interpretation – the Congress may, of course, amend the underlying statute. The use of an appropriation bill for this purpose, however, is inconsistent with the constitutional scheme of separation of powers.” Only then is the risk of a tyrannical legislature averted.
Photo Credit: The White House on Flickr (United States government work)