Like Donald Trump, Joe Biden has made a border wall promise he might not have the legal authority to keep.
On his first day in office, Biden hit pause on billions of dollars set to be spent on his predecessor’s long-touted barrier between the U.S. and Mexico while his administration figured out next steps for the money. Now the Government Accountability Office is launching a review to determine whether the new president broke the law by freezing the money in violation of budget rules designed to keep Congress in control of the cash flow, the federal watchdog confirmed this week.
An unfavorable ruling from GAO would bolster Republicans in branding Biden as a rule-breaker as they blame him for the surge of migrants and unaccompanied children at the southern border. The pause on spending “directly contributed” to that flood of border crossers, Senate Republicans said in their plea last week for GAO to opine on the issue. More than 70 House Republicans followed Tuesday in asking for a GAO opinion, which the watchdog typically provides whenever a member of Congress requests one.
Besides, Republicans say, Biden should know better after more than 30 years as a senator, as Sen. Roy Blunt (R-Mo.), chair of the Senate Republican Policy Committee, put it.
“He was in the Congress a long time,” Blunt said in an interview. “He knows it’s the Congress’ job to authorize how the money is spent and the president’s job to spend it efficiently.”
Even if GAO decides Biden has illegally halted border wall funding, he is unlikely to face any formal punishment, particularly not the blowback and impeachment Trump went through after the former president halted Ukraine aid without Congress’s say-so. The White House also notes that Biden’s hold differs in several key ways from Trump’s move to lock up the foreign assistance, which GAO deemed illegal last year.
Biden’s proclamation in January “set this process in motion in a public, transparent way, while directing agencies to comply with appropriations law,” an OMB spokesperson said.
The probe highlights the challenge presidents have historically faced in fulfilling campaign promises that require money to be spent — or suspended — at odds with Congress’ intent. During his administration, Trump shifted money away from accounts for things like military construction projects to pay for the border barrier as he struggled to get congressional Democrats to agree to the funding levels needed to build the “big, beautiful wall” he promised his supporters. Now Biden is facing trouble in trying to turn off that funding spigot after saying last year that “not another foot of wall” would be constructed during his administration.
“The Biden administration has to be really careful about doing stuff like this, because otherwise they’re just going to be doing the exact thing the Trump administration did — just at the other end of the policy spectrum,” said Dylan Hedtler-Gaudette, a manager at the watchdog group Project on Government Oversight.
In Biden’s defense, administration officials make two main arguments.
First they say, halting funding for the border wall was needed to buy the administration time to come up with a plan for spending the money. An OMB spokesperson called it “a necessary and responsible step for prudent management of federal funds,” considering the bevy of ongoing lawsuits against Trump’s project.
White House officials add that the pause on funding has been formal and public, with plenty of time left to legally spend that cash and clear instructions that federal agencies must follow spending law. In contrast, they note, Trump tried to secretly seize funding like the Ukraine aid in 2019 and permanently tie up government money by taking action right before the annual spending deadline.
The Senate Republicans who asked GAO to weigh in on Biden’s funding move said “billions in lawfully appropriated dollars … sit unused by the Biden administration,” which amounts to a violation of a 1974 law that curbs a president’s power to alter funding Congress provides.
“A lot of us agree that the border wall was a very stupid idea — a waste of money — but Congress decided to waste the money on that,” said Hedtler-Gaudette. “The way to address that is not to have the executive branch override the legislative branch.”
Legality aside, congressional leaders say both Trump and Biden’s funding actions illustrate the need for more transparency and teeth in federal budget law.
Under the leadership of progressive Democrat John Yarmuth, the House Budget Committee “is determined to reassert and strengthen Congress’ power of the purse” and “will review GAO’s response to the senators’ inquiry,” a committee spokesperson said.
The Kentucky congressman also plans to reintroduce legislation that would “increase transparency around executive spending,” the aide said. It’s unclear if the Biden administration will support the bill, which would require OMB to make public its instructions for spending money, shedding light on the administration’s funding decisions in a change that some advocates believe is necessary regardless of who is president.
Even though the Government Accountability Office determined that Trump’s budget office violated the law when it froze U.S. military aid to Ukraine, the former president faced no penalty and was acquitted on impeachment charges of abusing his power by withholding the foreign assistance.
“Faithful execution of the law does not permit the president to substitute his own policy priorities for those that Congress has enacted into law,” GAO wrote early last year.
The Trump administration’s decision to impede hundreds of billions of dollars in military assistance to Ukraine happened behind closed doors until POLITICO broke the news in August 2019. OMB had used what’s known as an apportionment footnote to hold up that money, which was released only a few weeks before it was set to expire.
Trump’s OMB chalked it up to a “programmatic delay,” an often-legitimate reason for spending pauses that the Government Accountability Office vehemently swatted down, citing the president’s policy and political ambitions as congressional Democrats accused Trump of leveraging the funds to damage Biden’s image ahead of the 2020 presidential election.
Trump’s budget office also used the same tactics to enact a number of other policy goals, including a halt to funding for the World Health Organization amid accusations that it bungled the global response to the coronavirus pandemic and gave too much deference to China.
Drawing a distinction between Trump’s actions and Biden’s move, a current OMB official told POLITICO that the White House budget office under the new president has never used that apportionment tool to freeze money for border wall construction. A bipartisan government funding package signed into law late last year included $1.4 billion for the wall, in line with what Congress gave Trump through previous spending packages.
Biden’s pause — which his administration also characterized as a “programmatic delay” — was announced publicly via presidential proclamation. The administration has also promised to release the money if the pause violated congressional intent.
The Biden administration still plans to spend the border wall funds, and agencies could ultimately divvy up the dollars for other wall-related purposes allowed by law, like fencing repairs.
Jennifer Scholtes contributed to this report.
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