Opinion

DHS Funding Inquiry Could Be Used To Delay Obama’s Executive Amnesty

Ian Smith Immigration Reform Law Institute

Obama’s amnesty decree being halted by a federal court in Texas comes at a perfect time. The injunction order will now let a full hearing of the Texas plaintiffs take place just as fresh allegations of more unlawfulness on the part of Obama’s amnesty-enablers begins to surface.

Last week, the watchdog group Judicial Watch sent a letter to Congress asking that the Government Accountability Office investigate the Department of Homeland Security for using misappropriated taxpayer funds to pay for Obama’s latest executive actions on amnesty. The concern is certainly well-founded. DHS has paid out nearly $50 million on new hires and office space to process new DACA and DAPA applications despite their funding levels being frozen and having yet to collect any application fees. Understanding how the administration’s most important program-rollout since Obamacare is actually being financed, could reveal yet another set of laws that are being broken in order to push through Obama’s amnesty agenda.

Judicial Watch’s letter directs GAO, Congress’s investigative body, to determine “whether USCIS is using funds appropriated, including any monies raised by fees assessed by USCIS, for a different, designated purpose to fund the implementation the plans to extend DACA and establish DAPA.” Further, they note USCIS (U.S. Citizenship and Immigration Services) is likely preparing long-term contracts with federal vendors, which would push it “in excess of the amount of government funds available to it.”

Both moves they rightly contend would violate the Antideficiency Act, a federal law prohibiting government officials from spending funds and signing contracts before an appropriation is made by Congress or that pushes an agency beyond its available funding. With the amnesty programs being rolled out and new contracts apparently being signed, there’s no reason why GAO shouldn’t be mounting a full and comprehensive inquiry.

For immigration enforcement advocates, it’s an open secret that Obama’s DHS has been illegally hoarding funds, most likely from fees skimmed from legal applicants, in order to pay for his new amnesty directives. In a leaked 2010 memo on tactical measures for pushing through administrative amnesty, DHS lawyers advised Obama-appointees that Congress could try to halt such a program through defunding. They warned that “Congress may… seek to undermine [executive amnesty] through legislation or by using its appropriations authority to prohibit the expenditure of funds on such a program.”

While they noted fees from applications could be used to offset some processing costs, they maintained that “the only realistic prospect of a source of funding may be a new appropriation.” But because there hasn’t been a new appropriation earmarked for a DACA expansion or for DAPA’s rollout, those programs’ financing is likely coming from stashed away funds in violation of appropriations law.

Jessica Vaughn from the Center for Immigration Studies has speculated as much. In an interview with Fox recently, she wondered whether USCIS “squirreled away money from the fee revenues from other programs to get [DAPA] off the ground … without authorization from Congress.” When she testified about this issue before House Judiciary last week, Rep. Louis Gohmert (R-TX) confirmed he’d heard reports that the “administration is illegally moving that money over [fromlegal visa applicants] to give priority to people that came in illegally.” He also noted this would have the effect of adding insult to injury by pushing those same legal applicants to “the back of the line.”

Legal commentator Hans Bader says this would give those applicants standing to sue DHS over amnesty – open borders advocates have noted this possibility. Wendy Felix of the Soros-funded American Immigration Council noted that DHS “knew for a long time to anticipate something coming” and that they’ve been “planning and thinking” about amnesty for years. Given the corrupt behavior of DHS appointees and Obama’s mad drive for amnesty, violations of appropriations law are certainly a well-founded worry.

But whether the Obama administration, with its long record of intransigence, would let DHS offer up the necessary documents is unlikely. Senator Sessions has already sent a request letter to USCIS asking for similar documents as has my organization, the Immigration Law Reform Institute, through the Freedom of Information Act; I have muted expectations for how they’ll respond.

It may be possible, however, for GAO to force compliance through the courts if DHS decides to stonewall them. The major case in this area, Walker v. Cheney (2002), involved GAO suing the former vice president over his refusal to entertain the requests of Rep. Henry Waxman and Sen. John Dingell for communications-records related to his working group on energy policy, the National Energy Policy Development Group. Although the court applied to the GAO an “especially rigorous” test for legal standing in light of the political nature of the inquiry (which they failed), they made the point that “neither a House of Congress nor any congressional committee ha[d] issued a subpoena for the disputed information or authorized [the] suit.” If Speaker Boehner or Senator Sessions blesses such a lawsuit, a court may grant standing and possibly injunct Obama’s amnesty until information on upfront DAPA and DACA-funding is made available.

Whether the administration has violated the Antideficiency Act is up to the GAO and perhaps investigators on the appropriations committees to find out. Given Obama’s treatment of our constitution and immigration laws, the findings of such an inquiry likely won’t be surprising.