GAO rules Biden freeze on border wall funds legal

The Government Accountability Office (GAO) on Tuesday ruled that President Biden’s move to freeze border wall funds did not violate budgetary law, angering Republicans.

“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 [Impoundment Control Act] ICA,” Shirley Jones, managing associate general counsel for appropriations law at GAO, said in a statement.

Budgetary law requires the executive branch to spend the funds that Congress appropriates, and sets limits on what administrations can do to “impound,” or avoid spending required sums.

In its decision, the GAO said that delays for environmental reviews and consultations with stakeholders, which are required by law, were appropriate, and did not constitute an illegal impoundment.

“Delays in the obligation and expenditure of funds in these circumstances are programmatic delays, not impoundments,” Jones said.

Last week, the Pentagon said it would restore $2.2 billion in funds that former President Trump diverted from military construction projects to the wall using emergency powers, a move that faced a slew of legal challenges.

Congressional Republicans had accused Biden of breaking the law by freezing the funds.

The GAO had previously ruled against Trump’s freeze on Ukraine aid as a tactic to pressure the country’s leaders to produce dirt on Biden, then a candidate for president. 

That freeze, which the GAO said was illegal, was at the center of Trump’s first impeachment.

“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, a spokesman for the White House Office of Management and Budget.

Republicans excoriated the ruling, saying it set 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,” Senate Appropriations Committee Vice Chairman Richard Shelby (R-Ala.) and Senate Homeland Security Appropriations Subcommittee ranking member Shelley Moore Capito (R-W.Va.) 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,’ ” they said.

Rep. Jason Smith (Mo.), the top Republican on the House Budget Committee, said the decision set a dangerous precedent.

“Today’s unfortunate decision by GAO will sadly only serve to embolden the Biden Administration to take additional actions that undermine the integrity of our borders and national security,” he said.