Biden’s holdup of border wall funding didn’t violate law, GAO rules

‘Programmatic delay’ allowed under 1974 budget law

Normandy fencing fills a gap in the border barrier on the Johnson Ranch near Columbus, N.M., on April 12. (Bill Clark/CQ Roll Call file photo)
Normandy fencing fills a gap in the border barrier on the Johnson Ranch near Columbus, N.M., on April 12. (Bill Clark/CQ Roll Call file photo)
Posted June 15, 2021 at 11:01am, Updated at 2:06pm

Congressional investigators said Tuesday that President Joe Biden’s pause of more than $1 billion in funds for southwest border wall construction did not violate the law, as some Republican lawmakers had claimed.

Instead, the nonpartisan Government Accountability Office said withholding the funds from obligation is a “programmatic delay” that is allowed under the 1974 law establishing the modern budget process. That’s different from a previous finding that President Donald Trump’s administration violated the budget law when holding up Ukraine military assistance in 2019, which led to impeachment proceedings against Trump.

But GAO also said it is “sensitive” to the fact that none of the fiscal 2021 appropriation for the wall has been obligated. And it suggested in the report that congressional committees require the Office of Management and Budget and Department of Homeland Security to submit a timeline for planned use of the funds.

[Biden administration offers plan for unused border wall funds]

Biden campaigned on ending construction of the U.S.-Mexico border wall, and on his first day in office, Jan. 20, he issued a proclamation stopping wall construction and withholding obligation of funds to build it. Biden also ended a “national emergency” that Trump had declared to enable the White House to shift defense, military construction and other funds to wall construction.

Republicans attacked the GAO decision.

In a joint statement, Senate Appropriations ranking member Richard C. Shelby, R-Ala., and West Virginia Sen. Shelley Moore Capito, the top Republican on Homeland Security Appropriations, said the opinion “makes clear that there are two sets of rules when it comes to executing funds appropriated by Congress: one for Democrat administrations and one for Republican administrations.”

They said the opinion “splits hairs to justify actions that, just two years ago, were determined to be contrary to ‘the faithful execution of the law.’”

Shelby and Capito added that since Biden paused wall construction, more than 633,000 people from other countries have been caught illegally crossing the border and more than 87,000 have been released into the interior of the country, “many never to be heard from again.”

The White House budget office welcomed the opinion. “As we said all along, this Administration is committed to upholding the rule of law, and the President’s proclamation directed Federal agencies to comply with appropriations law at every step,” OMB spokesman Abdullah Hasan said in a statement.

Differences with Ukraine ruling

In its report, GAO said DHS and OMB have shown that the pause is a permissible programmatic delay needed to “perform environmental reviews and consult with various stakeholders, as required by law, and determine project funding needs in light of changes that warrant using funds differently than initially planned.”

The legislative agency said that “because the delay here is precipitated by legal requirements, the delay is distinguishable from the withholding of Ukraine security assistance funds.”

At the time the Trump OMB put a hold on the Ukraine aid, the Defense Department already had certified to Congress that the statutory prerequisites for obligating the money had been satisfied, the opinion said. “Nor did OMB identify any other legal requirement that needed to be met before the Ukraine security assistance funding could be spent,” it added.

The report said DHS has almost fully obligated the remaining appropriated funds for the wall from previous fiscal years through fiscal 2020. But it said DHS has not yet obligated the $1.375 billion in funds appropriated for fiscal 2021. The wall appropriations do not expire for five years, meaning the $1.375 billion wouldn’t expire until the end of fiscal 2026.

On Jan. 13, before Biden assumed office, DHS had submitted a plan to Congress detailing plans to use the fiscal 2021 appropriation to build 56 miles of border barrier in California, according to the report. Those plans assumed that Pentagon funds would continue to be used for wall construction and that waivers of environmental and natural resources laws would remain in effect.

But Biden’s termination of the emergency proclamation ended use of the Pentagon funds for the wall. And GAO said Homeland Security Secretary Alejandro Mayorkas has decided he will not waive environmental laws as they apply to existing barrier construction projects and new construction projects. 

As a result, DHS must comply with those laws and “determine project needs, as initial plans for these funds presupposed the continued waiver of statutory prerequisites” and continued use of defense funds.

“Delays associated with meeting statutory prerequisites and determining funding needs in light of changed circumstances constitute programmatic delays, not impoundments,” the opinion written by GAO General Counsel Thomas H. Armstrong states.

In his fiscal 2022 budget, Biden asked Congress to rescind or cancel $1.9 billion in remaining border barrier funds from prior appropriations. A report issued by the administration last week said the funds to be canceled would instead be used “for modern, privacy-protective, and effective border management measures like enhanced technology between points of entry and improved infrastructure at Land Ports of Entry.”

But in the meantime, the administration is continuing to spend some remaining funds from fiscal 2018 through fiscal 2020 on construction projects to “avert immediate physical dangers” and for other purposes, the report said.

DHS said it plans to spend some of the fiscal 2021 appropriation on existing wall projects, including “for the costs associated with bringing DHS’s existing projects into compliance with statutory requirements under environmental laws, and for stakeholder consultation.”

OMB has pledged it will eventually obligate the border wall appropriation “unless and until” Congress cancels the funding, according to GAO.

Republicans had charged that if Trump’s temporary withholding of aid to Ukraine in 2019 was an illegal impoundment, as GAO concluded then, Biden’s hold on the wall funds also was illegal.

Biden’s OMB argued that the pause is a permissible delay “to ensure the prudent obligation of the money Congress had specifically appropriated for barrier construction.”

“Once the funds the prior Administration diverted to the wall were returned to their original congressional purposes, the Executive Branch could no longer proceed full speed ahead based on the assumption that diverted funds would remain available for wall construction,” OMB General Counsel Samuel R. Bagenstos said in a May 6 letter to GAO. Instead, the administration “had to make choices about how to prioritize the use of the specifically appropriated funds that remained.”