Biden's border wall funding freeze was legal, GAO rules

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Congressional investigators ruled Tuesday that President Biden's decision to freeze more than $1 billion in border wall funds didn't violate budgetary law, though Republican lawmakers strenuously objected.

The president's "programmatic delay" of funds is permitted under the 1974 law establishing the modern budget process, according to a report issued Tuesday by the Government Accountability Office. 

"We conclude that delays in the obligation and expenditure of DHS's appropriations are programmatic delays, not impoundments," the report read. "[The Department of Homeland Security] 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."

On his first day in office, January 20, President Biden issued a proclamation halting border wall projects and curtailing the flow of funds allocated for construction of new border wall. 

According to the GAO report, the Department of Homeland Security (DHS) has obligated almost all remaining appropriated funds for the wall from previous fiscal years up to 2020, but has not yet allocated the additional nearly $1.4 billion in border wall appropriations for fiscal year 2021, passed as part of a broader COVID-19 relief bill last December. 

While DHS is legally obligated to use the funding for border barrier projects, the Biden administration called on Congress to "cancel" the remaining funds last week, preventing further border wall expansion.

Last Friday, the Biden administration announced it would begin funneling congressionally allocated border wall funds to address "urgent life, safety, and environmental issues resulting from the previous Administration's wall construction."

Budgetary law mandates the White House spend the funds appropriated by Congress, setting limits on what administrations can do to "impound," or withhold the funding. 

But the GAO determined that delays for environmental reviews and consultations with stakeholders did not constitute an illegal impoundment and are, in fact, required by law. 

"Delays in the obligation and expenditure of funds in these circumstances are programmatic delays, not impoundments," the report read. 

"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, an OMB spokesperson, in a statement to CBS News. 

Last week, the Pentagon said it would restore $2.2 billion in funds to military construction projects that President Trump had diverted in order to fund the building of the southern border  wall. He had used emergency powers to redirect the money, a move that faced a slew of legal challenges.

And in 2019, the GAO ruled against President Trump's hold on Ukrainian aid to coerce the country's leaders to hand over political ammunition on potential Democratic presidential nominee, Joe Biden. The illegal freeze led to the former president's first impeachment trials. 

On Tuesday, Republicans blasted the latest GAO ruling, calling its conclusion a double standard.

"GAO's decision today 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," Senators Richard Shelby and Shelley Moore Capito said in a joint statement.

"The decision splits hairs to justify actions that, just two years ago, were determined to be contrary to 'the faithful execution of the law.'"

Representative Jason Smith, the top Republican on the House Budget Committee, called the decision "unfortunate" and accused the GAO of emboldening the Biden administration "to take additional actions that undermine the integrity of our borders and national security."

"To be clear, this will not be the final ruling on the matter. Congress and the American people are well aware of the full intent behind President Biden's action," Ranking Member of the House Homeland Security Committee  John Katko said. "We will continue our robust oversight, along with GAO, to ensure that these taxpayer funds are being spent in accordance with congressional intent. The Administration can't trick GAO with a 'pause' in perpetuity. At some point, there will indeed be a moment of well-deserved reckoning for their flaunting of intent behind existing appropriations."

Last week, the Biden administration returned to the Pentagon more than $2 billion in military funds that President Trump had diverted for border wall construction, denouncing the transfers away from the Defense Department as wasteful.

The funds — an unspent balance of $3.6 billion in Pentagon construction funding reprogramed during the Trump administration — will now be used for over 60 projects at military installations in the U.S. and overseas.

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