The Government Accountability Office ruled Tuesday that President Biden was within his powers to stop border wall construction, calling it a “programmatic” delay, not an attempt to thwart the will of Congress.
Though Mr. Biden said last year that he wouldn’t build “one more foot” of wall, GAO investigators said the president’s Inauguration Day proclamation halting construction contained a caveat that he would follow the law.
And at least as of now, GAO said, the White House insists it is committed to building barriers — just not as quickly as the last administration.
The ruling is a major blow to Republicans who had argued Mr. Biden’s halt, announced in a proclamation just hours after he was sworn in as president, was an illegal “impoundment” of money.
GAO, which is Congress’s investigative arm, said neither the Department of Homeland Security nor the Office of Management and Budget have siphoned the money from the wall accounts. Instead, they have merely added a layer of environmental studies that must be completed before construction can begin.
“OMB and DHS have met their burden to justify why the funds have not been obligated,” wrote Thomas H. Armstrong, the GAO’s general counsel. “We see nothing to indicate that either OMB or DHS is attempting to override congressional intent that these funds be used for constructing barriers at the southern border.”
But that ruling carried a warning to the administration. Should the delays run too long, Mr. Biden might run afoul of the law.
Mr. Armstrong said Congress could require the Biden administration to submit a concrete timeline for how it plans to obligate and spend the money Congress allocated.
“A detailed timeline could serve as a tool for rigorous oversight to ensure the president does not substitute his own policies and priorities in place of those established through the legislative process,” he said in his ruling.
Congress has earmarked about $5 billion in wall money since 2017, with a new post of $1.375 billion approved for the current fiscal year.
Much of the money remains unspent.
Republicans argued Mr. Biden’s border wall pause is similar to President Trump’s decision in 2019 to halt security assistance money destined for Ukraine. GAO did rule that move illegal, and it played a role in the first impeachment trial of Mr. Trump.
But Mr. Armstrong said the wall decision was different because the Trump team didn’t give good enough reasons for the delay in the Ukraine money.
In the case of the wall, he said, there are laws that the past administration waived but that the new administration doesn’t want to waive. Mr. Armstrong said working through those issues is a legal reason to derail Congress’ intended spending.
He also said that the fact that money allocated in past years remains “obligated,” in budget terms, means that Congress’s purpose has not yet been foiled.
Rep. Jason Smith, the top Republican on the House Budget Committee, said he feared the Biden team will consider the ruling a green light for more aggressive moves against Congress’ powers.
He also questioned the GAO’s attempt to distinguish the Ukraine and wall decisions.
“To be clear, the only thing that has changed since GAO’s opposite ruling on a similar matter in 2019 is the occupant of the White House,” Mr. Smith said.
Mr. Smith said the current surge of illegal immigrants at the U.S.-Mexico border is evidence for why wall construction is needed.
The White House budget office saw vindication in Tuesday’s ruling.
“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,” the budget office said in a statement.
The ruling, while backing the pause, does not excuse Mr. Biden from spending the money eventually.
Mr. Armstrong’s wording underscored GAO’s conclusion that Congress did intend the money to go to border barriers, meaning the administration cannot spend it on technology or other projects it deems more worthy that the wall.
Last week, Homeland Security Secretary Alejandro Mayorkas announced plans for wall money, acknowledging Congress’s intent that it be spent on border barrier construction.
He said some of the money will be used to deal with soil erosion he said was spawned by Trump wall construction. But he acknowledged that won’t absorb all of the billions still to be spent, and he asked Congress to pass a new law revoking the money.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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