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US GAO: Biden did not break law with border wall order

CHARLESTON, W.Va. — The U.S. Government Accountability Office announced Tuesday that President Joe Biden’s decision to freeze funding for a southern border wall and halt further construction did not violate federal law.

The agency stated in a report that the executive order was a “programmatic delay,” countering Republican arguments that the president’s decision violated Congress’ authority to control government spending.

Biden ordered on his first day in office construction funds to be redirected and future work paused. The GAO noted the funds for the current fiscal year had yet to be obligated, and the Department of Homeland Security and the Office of Management and Budget showed investigators the delay of almost $1.4 billion is necessary for performing required environmental assessments and consultation with stakeholders.

“Delays associated with meeting statutory prerequisites and determining funding needs in light of changed circumstances constitute programmatic delays, not impoundments,” the GAO stated in its report.

U.S. Sen. Shelley Moore Capito, R-W.Va. (File)

Forty senators — led by Republicans Richard Shelby of Alabama and Shelley Moore Capito of West Virginia — requested a GAO review of the president’s action in a March 17 letter. The lawmakers cited the Impoundment Control Act of 1974 — which clarifies Congress’ power to control government spending — and tied Biden’s policies to an increase in migrants attempting to enter the United States at the southern border

Other Republican lawmakers sent letters with a similar request.

The GAO noted Biden’s order is different from former President Donald Trump’s 2019 decision halting security assistance to Ukraine, in which the Office of Management and Budget did not identify a reason for taking a different approach than the Department of Defense’s plan.

“OMB asserted that the delay was associated with a need ‘to determine the best use of such funds,’ but OMB did not provide any support for why DOD’s plan for the funds did not reflect the best use of the funds,” the report stated.

“Nor did OMB identify any other legal requirements that needed to be met before the Ukraine security assistance funding could be spent. Instead, in its response to us, OMB described the withholding as necessary to ensure that the funds were not spent ‘in a manner that could conflict with the President’s foreign policy.'”

The GAO did suggest congressional committees require the Department of Homeland Security and the Office of Management and Budget to submit plans on using the appropriations for the current fiscal year.

Shelby and Capito criticized the GAO’s decision, accusing the agency of having separate rules for Democratic and Republican presidents.

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

Shelby and Capito added the watchdog agency’s decision does not change the situation at the border, noting more than 633,000 migrants have been caught attempting to illegally enter the United States since the Biden presidency began in January. More than 87,000 individuals have been released into the United States, “many never to be heard from again.”

“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,” they said.

Shelby serves as the vice chairman of the Senate Appropriations Committee, and Capito is the ranking member of the Senate Homeland Security Appropriations Subcommittee.

The Biden administration has called on Congress to cancel all funding appropriated for border wall projects and the money instead be dedicated for “modern, privacy-protective, and effective border management measures like enhanced technology between points of entry and improved infrastructure at Land Ports of Entry.”

The Department of Defense announced last week more than $2 billion in unobligated construction funds will go toward projects at bases and military facilities.





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