Forty Republican senators wrote to the head of the Government Accountability Office (GAO), Comptroller General Gene Dodaro, last week asking for an opinion on the legality of President Joe Biden’s January 20 proclamation "pausing" construction of barriers along the Southwest border. It is a textbook assertion of Congress's "power of the purse", occurring at a time that voters increasingly want border barriers.
President Trump actually began talking about building a border wall in April 2014, long before he announced his candidacy, and construction of that wall was a key campaign promise.
Border barriers, which had long been a fairly non-controversial and bipartisan solution to border security (the Secure Fence Act of 2006 passed the House and Senate with support from both parties), became a hot-button issue once they were championed by Trump. In December 2018, Trump demanded $5 billion for construction, which led to a weeks-long government shutdown.
In the end, on February 15, 2019, Trump agreed to $1.375 billion for border-barrier funding, and the impasse ended. That day, though, he also issued a proclamation declaring a national emergency at the Southwest border, and directing the Department of Defense (DoD) to assist in securing that border.
Ten days later, DHS asked DoD for assistance in constructing "fences[,] roads, and lighting" within 11 specified project areas, "to block drug-smuggling corridors across the international boundary between the United States and Mexico." That construction was in addition to the $1.375 billion that Congress had appropriated for border-wall funding.
The reprogramming of DoD funds for fence and infrastructure construction went through various legal actions, but was eventually allowed to proceed by the Supreme Court. That DoD reprogramming is not the topic of the senators' letter, which focuses only on direct appropriations for border barrier funding.
Additional funding of $1.375 billion "for the construction of [a] barrier system along the southwest border" was included in both the appropriations bills for FY 2020 and for FY 2021. And, as the senators' letter notes, by December 31, DHS had used that funding to build or replace more than 112 miles of border wall (452 miles of border barriers had been built or replaced in total under the Trump administration, by January 4).
In section 1(a)(i) of his January 20 proclamation, Biden directed DoD and DHS to "pause work on each construction project on the southern border wall, to the extent permitted by law, as soon as possible but in no case later than seven days from the date of this proclamation." (Emphasis added.) It does not appear that any border barrier construction has occurred, since.
The senators note that: "In the weeks that followed [that proclamation], operational control of our southern border was compromised and a humanitarian and national security crisis has ensued."
Their letter contends that this halt in construction is an "impoundment of funds" in violation of the Impoundment Control Act (ICA).
An "impoundment" in this context is "any action — or inaction — by an officer or employee of the federal government that precludes federal funds from being obligated or spent, either temporarily or permanently."
As the Democratic-controlled House Budget Committee explains it, the ICA "reasserted Congress' power of the purse. Specifically, Title X of the Act — 'Impoundment Control' — established procedures to prevent the President and other government officials from unilaterally substituting their own funding decisions for those of the Congress."
Congress's "power of the purse" can be found under its enumerated authorities in article I, section 9, clause 7 of the U.S. Constitution. That clause states, in pertinent part: "No money shall be drawn from the treasury, but in consequence of appropriations made by law”.
The phrase "power of the purse" refers back to a statement by Elbridge Gerry of Massachusetts at the Constitutional Convention, that the House "was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings." Reasonable enough.
GAO is an agency of Congress, and the comptroller general heads it up. As comptroller general, Dodaro is empowered to issue legal opinions "on questions involving the use of, and accountability for, public funds", which is what the senators are seeking. As they argue: "The President is not vested with the power to ignore or amend a duly enacted law."
More specifically, they assert: "The Constitution grants the President no unilateral authority to withhold funds from obligation." In other words, Congress gave the president the money for a reason, and it is not for him to question that reason.
That is not to say that the president has no power in this situation. He could impound that budget authority, but only under tightly circumscribed conditions pursuant to the ICA for what it refers to as proposed "deferrals" and "rescissions".
Deferrals are when the executive branch puts off budget authority that is "provided for a specific purpose or project". Under the ICA, deferrals are permitted solely "to provide for contingencies; to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or as specifically provided by law."
Rescission, on the other hand, is "the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority".
Both deferrals and rescissions require the president to transmit "a special message to Congress" explaining, among other things, the reasons for and the amount that the president proposes to defer or rescind. Which, those 40 senators contend, the president has failed to do, and which the proclamation is not a substitute for.
Rescission or deferral are not the president's only options. He could withhold appropriated funds for what is called a "programmatic delay". That occurs "when an agency is taking necessary steps to implement a program, but because of factors external to the program, funds temporarily go unobligated." (Emphasis added.)
The senators contend that there can't be any programmatic delays with respect to this funding, particularly considering the fact that DHS had already decided how to spend the funds, and as noted was actually doing so at the time Biden pulled the plug.
The ball is now in the comptroller general's court, but as Politico notes: "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."
That is certainly true for now, but facts on the ground, like Congresses, can change. In any event, all of this smacks of silliness.
As I have noted previously, then-Sen. Biden voted in favor of Secure Fence Act of 2006, and the Obama-Biden administration built 130 miles of the walls and fencing authorized by that legislation.
"The wall", as I stated above, only became a partisan issue because Trump made it a key point of his 2016 campaign and administration. And much of what passes for immigration policy under the current administration seems to be "Trump’s policy x [times] -1", in math terms.
But, as the Washington Times reported on March 23, a recent poll shows that a majority of voters now want the wall to be completed, likely in response to the current disaster that is occurring at the border.
Needless to say, a decision by the comptroller general favorable to those 40 Republican senators will likely only create more pressure on the president to, in the words of the late Sen. John McCain (R-Ariz.), "complete the dang fence".