Republican senators requested an investigation into President Biden’s order to pause border wall construction, saying Wednesday that the directive is “a blatant violation of federal law” because it blocks spending Congress specifically authorized.
Led by Sen. Shelley Moore Capito of West Virginia, the 40 senators asked the Government Accountability Office to investigate.
While Mr. Biden had the power to cancel some construction being paid for by funds shifted from within unrelated Pentagon accounts, the senators wrote that he did not have the power to block billions of dollars Congress specifically approved for the wall.
“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. Prompt action to end these violations is required to restore order at the border,” the senators wrote.
They called the move “unlawful,” and also argued it’s making the situation at the border worse, with a surge of migrants and a rising death toll among them. They pointed in particular to a horrific crash earlier this month in which 13 migrants who came through a hole in the wall were killed in California.
The Washington Times reported two months ago that experts on presidential and congressional powers said the halt was likely illegal.
Homeland Security Secretary Alejandro Mayorkas, who is leading a review of wall funding for Mr. Biden, said Wednesday he won’t recommend the money be restarted.
“No, I will not,” he told a congressman who pressed him on the matter, adding that Border Patrol agents don’t have “unanimity” on their support for the wall.
On Capitol Hill, the Senate’s senior lawmaker, Sen. Patrick Leahy, defended Mr. Biden’s pause. The Vermont Democrat called the barrier a “vanity wall” and said Mr. Biden was right to challenge the money Congress approved on a bipartisan basis.
Indeed Mr. Leahy, now chairman of the Appropriations Committee that oversees funding, has himself voted for multiple spending bills that included wall money.
Former President Donald Trump’s promise to build a wall along the U.S.-Mexico border was his most iconic vow from the 2016 campaign, and one where he made substantial headway. About 460 miles was erected during his tenure, and Homeland Security had plans, and identified funding, to build about 300 more miles.
Much of that was through money shifted from unrelated Pentagon accounts under a National Emergencies Act declaration Mr. Trump signed. Mr. Biden revoked that emergency proclamation in his first day in office.
But Congress over the last four years approved more than $5 billion specifically for wall construction, and much of that remains unspent — and now locked by Mr. Biden’s pause.
The new president had vowed not to build another foot of wall, and he said the pause was intended to give his team a chance to review their options for how to cancel the money. The GOP lawmakers said that was illegal. A president may delay money for reasons of efficiency, but not because of policy goals, they argued.
They specifically compared the halt to what Mr. Trump did in 2019, when he delayed security assistance money Congress had approved for Ukraine.
The GAO ruled that move illegal. It also was a key point in the first impeachment case against Mr. Trump, who was accused of withholding the money in order to force Ukraine to investigate Mr. Biden’s son for corruption.
At issue is what’s known in government-speak as “impoundment,” or the blocking of funds rightfully appropriated by Congress.
Under the Impoundment Control Act, a president can only refuse to spend money for limited reasons of administrative efficiencies or by proposing an official change back to Congress. In either case, Congress must be notified.
Mr. Biden did not make any such notification, the GOP senators said, nor did his explanation in his proclamation absolve him of those legal obligations.
For his part Mr. Trump claimed victory on what had been built, saying he views his wall as “almost complete.”
“We just had to fix little sections, complete little sections … but they’ve chosen to stop right in the middle,” Mr. Trump said on Fox News on Tuesday. “They could have it finished in a month, and it would be just magnificent. And they should finish it, but they’re destroying our country, people are coming in by the hundreds of thousands.”
• Stephen Dinan can be reached at email@example.com.
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