GAO says Biden halt of border wall construction does not violate law

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The Government Accountability Office (GAO) on Tuesday announced it had decided that the Biden administration’s ending of wall construction at the southern border does not violate the law, after Republicans had called for the agency to weigh in.

The GAO concluded that President Biden’s executive order on Inauguration Day that directed a pause in border wall construction and paused funding obligations did not violate the Congressional Budget and Impoundment Control Act (ICA) of 1974.

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"Further, it is clear that delays in the obligation and expenditure of Department of Homeland Security (DHS) appropriations for border fencing or barriers are programmatic delays, not impoundments and do not violate the ICA," Shirley Jones, managing associate general counsel for appropriations law, said in a statement.

Biden had campaigned on stopping the Trump-era wall construction, of which more than 450 miles were built during the prior administration. Biden promised that "not another foot" would be built -- despite warnings from Republicans and Trump officials that it could cost money to cancel contracts already in place. Additionally, they have pointed to the ongoing crisis at the southern border and claimed that the order exacerbated the issue.

A group of 40 GOP senators, led by Sen. Shelley Moore Capito, R-W.Va., wrote to the GAO, saying the order had contributed to a "humanitarian and national security crisis" at the border -- and questioned the legality of the order.

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The president’s actions "are also a blatant violation of federal law and infringe on Congress’ constitutional power of the purse," they wrote. "We write regarding these actions. We believe they violated the Impoundment Control Act (ICA) as interpreted by your office, and we request your legal opinion on the matter."

They argued that the ICA requires that Biden transmit a message to Congress "that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal." 

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Dozens more House and Senate Republicans would eventually support the request. 

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Capito, in a statement issued with Sen. Richard Shelby, R-Ala., said the GAO 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."

"While disappointing, 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," they wrote. "We hope our colleagues in Congress recognize this overreach by the executive branch and don’t excuse it just because they are in the same political party."

Democrats, meanwhile, welcomed the announcement.

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"As the ruling made clear, a review of the environmental havoc wrought by former President Trump’s vanity wall, and taking the time to actually consult with the various stake holders, including landowners whose land was being seized, is legal and permitted by law," Senate Appropriations Committee Chairman Patrick Leahy, D-Vt., said in a statement. "President Trump’s approach to the wall at the Southern Border was at best a bumper sticker approach to a serious policy issue, and it should be reviewed to ensure that American taxpayers’ dollars are well spent."

The Biden administration recently announced that money diverted to the wall by the Pentagon is being returned, and that remaining money is being used to address environmental and safety issues at or near the sites of construction.