Joe Biden order to halt border wall construction is likely illegal, experts say

President Biden’s directive pausing border wall construction is probably illegal, several experts told The Washington Times, saying he has the power to cancel Defense Department money that was being funneled toward the project, but he went too far by halting construction paid for by money Congress had specifically approved for the wall.

Mr. Biden’s order last week also put 5,000 people out of work, and will waste “billions” of dollars to pay off contractors for work that will no longer be done, said the man who oversaw construction for the Trump administration.

Mark Morgan, who was acting commissioner of Customs and Border Protection, told The Washington Times in an exclusive interview that as of Jan. 20 they were still spending money Congress had approved three years ago on wall construction, and a president is required to carry that out.

“The president just can’t unilaterally say ‘Congress, what you appropriated funding for, no, I’m not going to do that,’” Mr. Morgan said. “He was basically telling CBP to break the law to stop construction.”

Some 460 miles of wall built under Mr. Trump, and Homeland Security had plans — and funding — to erect more than 300 more miles, Mr. Morgan said.

All of that came to a halt soon after Mr. Biden’s Inauguration Day proclamation.

Border officials said the only exceptions were a few spots where crews had to do quick safety fixes, such as covering up open trenches or tying down loose material, before they parked the backhoes and put down the shovels.

Some of the ongoing construction was being paid for with money President Trump had siphoned from Department of Defense accounts under his border emergency. Experts said Mr. Biden was within his powers to revoke the emergency and reclaim that money.

But Congress also allocated $.1375 billion each year from fiscal year 2018 through the current fiscal year 2021 specifically toward wall construction.

That’s where Mr. Biden’s halt may run into trouble, according to Louis Fisher, a leading scholar on presidential and congressional powers.

“If he is halting the expenditure of DOD funds — that Trump reprogrammed to build the wall — I think Biden is acting properly. If Biden is doing more then he might be acting improperly,” said Mr. Fisher, who spent four decades as the Library of Congress’s senior specialist on separation of powers issues. “Congress did appropriate some funds for the wall, although less than Trump requested. Withholding that money, I think, would be improper.”

Mr. Biden, in issuing the halt, called the wall “a waste of money that diverts attention from genuine threats.”

His order paused both current and planned construction “to the extent permitted by law.” He also ordered a review of the consequences of canceling the projects outright. Mr. Biden made an exception “to ensure that funds appropriated by the Congress fulfill their intended purpose.”

In practice, sources told The Times, the wall was halted across the board.

James P. Pfiffner, professor emeritus at George Mason University and an expert on presidential powers, said he wasn’t familiar with the specifics of the wall, but said in general presidents are required to spend money as Congress directed — though they can fudge the timing.

“If Congress appropriated money for the wall, it should be spent,” he said. “The president has some discretion over the timing of expenditures, and it is reasonable for some funds to be delayed. If it was a significant delay, the administration should notify Congress with a deferral notice, but it cannot defer spending past the end of a fiscal year.”

Mr. Pfiffner did offer another possibility. He said the Biden team could claim fungibility of funds.

Congress allocated $4.125 billion for wall construction from 2019 through 2021. As long as Homeland Security has spent that much — even if some of it came from siphoned Pentagon money — it could argue it’s fulfilled Congress’s intent, and it can try to return the other money.

Congress’s power to control spending is a fundamental tenet of government.

That was one of the problems Mr. Trump faced in 2019, when he delayed sending security assistance money to Ukraine. The Government Accountability Office ruled that he had violated the Impoundment Control Act, and that became evidence against him in his first impeachment trial.

“Faithful execution of the law does not permit the president to substitute his own policy priorities for those that Congress has enacted into law,” the GAO ruled in the Trump case.

Unlike Mr. Trump’s situation, which led to his first impeachment, there is no suggestion that Mr. Biden engaged in a quid pro quo over the wall money.

Homeland Security referred all questions about the legality of the halt back to the White House, which didn’t respond to a request for comment.

Mr. Morgan, in his interview with The Times, bristled at White House press secretary Jen Psaki’s declaration during a briefing last week that the wall “has not worked even to keep the country safer, even to keep bad actors out.”

“The new president of the United States’ press secretary got out and just lied to the American people. She said walls weren’t effective. That’s just a lie,” Mr. Morgan said.

He pointed to Mr. Biden’s vote in the Senate 2006 for 700 miles of double-tier border fencing, which is more than Mr. Trump erected. And Mr. Biden was vice president in the Obama administration, which itself built miles of border fencing.

Mr. Morgan said there was a reason the Obama team built walls: “Every measure of success improves where we have the wall, technology and personnel.”

The former CBP chief also saw an irony in Ms. Psaki’s assertion. He said on so many other areas, such as coronavirus, the Biden team says it’s following what the experts say.

“When it came to the border wall, they did the opposite,” Mr. Morgan said. “They will not find a Border Patrol agent that’s on the front lines today that will tell them the wall doesn’t work.”

He said the wall project is a system, including high-speed roads and lighting and technology.

Combined, they give the Border Patrol a much better chance to interdicting and turning back or arresting an attempt to breach the border.

Brandon Judd, president of the National Border Patrol Council, the union that represents Border Patrol agents, said the numbers from Arizona bear that out.

In the Tucson Sector, which covers most of the state’s southern half, the eastern part has been the site of some of the most intense wall-building over the last four years. The more remote western part has not.

Mr. Judd said over a five-day period last week, the agents detected about 2,006 illegal entries in the western part, and apprehended 915 — a success rate of about 46%.

In the eastern part, where wall has been built, they detected just 1,180 entries, and apprehended 881 — a success rate of about 75%.

“This is why we say walls work,” Mr. Judd said. “Walls allow us to dictate where the entries take place, and if we can dictate where entries take place we can be a lot more effective.”
Halting construction has other side-effects, too.

Mr. Morgan said there were 5,000 people working for the contractors on wall construction. They are out of jobs, amid an already pandemic-blighted economy.

And canceling the wall-building is not likely to actually produce much savings to taxpayers, he said.

There were between 27 and 30 contractors working on wall projects as of last week, and in each case the government will now have to negotiate a settlement, paying them for work already done and materials already purchased, and for any mitigation they have to do on the sites.

For example, he said, the companies already had 270,000 tons of steel bollard produced and ready to go into the ground. That now must be destroyed or stored, and either way it’s sunk costs with no return.

Mr. Morgan said the overall sunk cost will come to “billions” of dollars.

Moving forward, Mr. Biden could ask Congress to rescind the border wall money. Or he could try to thread a legal needle and spend the cash on other border infrastructure, but not on actual wall.

Mr. Morgan said at this point, that’s the best he can hope for. That would mean the money would go toward roads, lighting and technology, all of which can help agents detect and respond to incursions — though without the shaping ability additional walls would provide.