Crews construct a section of border wall in San Bernardino National Wildlife Refuge in Douglas, Ariz., in December 2020.

Crews construct a section of border wall in San Bernardino National Wildlife Refuge in Douglas, Ariz., in December 2020. AP file photo

GAO Says Biden’s Freeze on Border Wall Construction Didn’t Violate Budget Law

The watchdog said the “programmatic delays” were not comparable to an earlier GAO finding that the Trump administration violated the Impoundment Control Act in withholding funds for Ukraine.

The Government Accountability Office on Tuesday said it had determined the Biden administration’s decision to freeze construction of a border wall between the United States and Mexico did not violate the law. 

Shortly after coming into office, President Biden issued a proclamation pausing construction of the wall, a cornerstone of former President Trump’s immigration policy, and ordering a review of its contracts and funding. In March, 40 Republican senators asked GAO to determine if Biden violated the 1974 Impoundment Control Act, which prohibits the executive branch from withholding Congressionally appropriated funds for policy reasons. The Republicans believed the Biden administration violated the law and GAO began reviewing the issue soon after Biden’s announcement in January even before the watchdog accepted the request from the lawmakers. 

“We conclude that delays in the obligation and expenditure of [the Homeland Security Department's] appropriations are programmatic delays, not impoundments,” wrote Thomas Armstrong, GAO general counsel. “DHS and the Office of Management and Budget have shown that the use of funds is delayed in order 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.” 

GAO didn’t find anything to show that either the White House Budget Office or Homeland Security was trying to override Congress’ intent, he said. 

“To facilitate Congress’s oversight of executive spending on border barrier construction, Congress should consider requiring OMB and DHS to submit a timeline detailing the planned uses and timeframes for obligation and expenditure of DHS’s barrier appropriations,” Armstrong wrote. That would “help assure Congress that executive action is aligned with the policies and priorities it established in the legislative process.” 

GAO noted that the funding delay ordered by Biden was “precipitated by legal requirements” and was “distinguishable from the withholding of Ukraine security assistance funds” by Trump in 2019. In that case, the watchdog found in January 2020 that the Trump administration violated the Impoundment Control Act by withholding approximately $214 million in Defense Department funds Congress had appropriated to bolster Ukraine’s security against Russian aggression—actions that were central to former President Trump’s first impeachment. 

"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," said Abdullah Hasan, OMB deputy associate director for communications. 

Sens. Richard Shelby, R-Ala., vice chairman of the Senate Appropriations Committee, and Shelly Moore Capito, R-W.Va., ranking member of the Senate Homeland Security Appropriations Committee, said the decision “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 also claimed, “GAO’s decision does not change two critical facts: 1) there is a crisis on the southern border and it is getting worse; and 2) Congress—on a bipartisan basis—appropriated funding to build a wall, which the U.S. Border Patrol has long said is needed to help stop illegal immigration.” 

The Biden administration announced on April 30 it was canceling border wall contracts from the Trump era. Last Friday, officials outlined how the administration is planning to use the $2.2 billion in unobligated funds for the border wall and repair environmental damage in the area.

Update: This article has been updated with comment from OMB.