Border wall construction is seen near farmland as a tractor plows a field on March 19, 2021, in Progreso, Texas.

Border wall construction is seen near farmland as a tractor plows a field on March 19, 2021, in Progreso, Texas. Julio Cortez / AP

Biden Administration is Still Working on Plan for Border Wall Contracts

A government watchdog is reviewing if the pause in construction violated a budget law.

The Biden administration is still deciding how to handle the border wall contracts from the previous administration, after a deadline from the president recently passed.

President Biden issued a proclamation on January 20 to pause construction on former President Trump’s signature U.S.-Mexico border wall, to the extent legally allowed, and direct the Defense and Homeland Security secretaries, in consultation with the Treasury secretary, attorney general and Office of Management and Budget director and any other appropriate agency officials to create a “plan for redirecting funding and repurposing contracts.” Biden said the plan should be formulated “within 60 days from the date of this proclamation,” which was March 21 (Sunday). 

“When the administration took office, funds had been diverted from military construction and other appropriated purposes toward building the wall, and wall construction was being challenged in multiple lawsuits by plaintiffs who alleged that the construction was creating serious environmental and safety issues,” an OMB spokesperson told Government Executive when asked for comment on the plan. “Under those circumstances, federal agencies are continuing to develop a plan to submit to the president soon.”

DHS and the Defense Department deferred to OMB for comment. The Treasury and Justice departments did not immediately respond for comment. 

The deadline came four days after 40 Republican senators asked the Government Accountability Office to determine if Biden’s pausing construction on the wall and freezing funds violated the Impoundment Control Act, which prevents the executive branch from withholding funds for policy reasons and outlines a process for seeking to delay funds appropriated by Congress. The Republicans said they believe the Biden administration violated this law.

A GAO spokesperson told Government Executive on Tuesday the watchdog accepted the request on Monday. 

The senators wrote “not long ago” the watchdog “applied these legal principles to a set of factual circumstances remarkably similar to the ones here,” referencing GAO’s report in January 2020 that said OMB violated the law by withholding security aid to Ukraine for policy reasons. The funding situation was the subject of Trump’s first impeachment in the House. However, Sen. Mitt Romney, R-Utah, who signed the letter, was the only Republican senator to vote to convict Trump.

“As these unlawful pauses have proceeded, the rate of illegal crossings has surged, creating a crisis across our southern border, at times with tragic consequences,” the senators added.

Dylan Hedtler-Gaudette, government affairs manager for the watchdog group Project on Government Oversight, told Government Executive, “the real issue here is that we need more information from OMB as to precisely what funding the administration is intending to halt or redirect” with the proclamation, which is one of several early actions on immigration taken by the administration, “and what the legal basis is for that decision.” 

DHS Secretary Alejandro Mayorkas said in a statement on March 16, “we are on pace to encounter more individuals on the southwest border than we have in the last 20 years.” He said they are expelling most families and single adults, but not unaccompanied children.

The Biden administration is grappling with how to handle this surge of migrants trying to cross the border and facing increasing pressure to let press into border facilities to see their true conditions. Officials have been telling migrants not to come right now. 

Last week, Immigrations and Customs Enforcement awarded an $86 million contract for hotel rooms to hold the increasing number of individuals at the border, Axios reported, and the president deployed Federal Emergency Management Agency personnel to help with the surge.

Mayorkas led a bipartisan delegation of senators to the border in El Paso, Texas, last Friday and then Roberta Jacobson, border czar, went to Mexico on Monday to meet with the government about the situation, USA Today reported.

Meanwhile, the administration has been reluctant to call the influx of migrants a “crisis.” 

“Children presenting at our border who are fleeing violence, who are fleeing prosecution, who are fleeing terrible situations, is not a crisis,” White House Press Secretary Jen Psaki said during a briefing on Monday. “We feel that it is our responsibility to humanely approach this circumstance and make sure they are treated with––treated and put into conditions that are safe.”

Also, Psaki said administration officials are working with DHS and the Health and Human Services Department on a press visit, while adhering to coronavirus protocols, in their commitment to being transparent. 

“It doesn’t appear as though a physical border wall would do anything to alleviate the current situation,” said Hedtler-Gaudette. However, “it does make for difficult optics for the Biden administration.”