Press Statement On Appropriations Law Decision Regarding Border Wall
The following is a statement from Shirley Jones, Managing Associate General Counsel for Appropriations Law, regarding a decision, B-333110, issued June 15, 2021.
In a legal decision issued today, GAO concluded that a Presidential Proclamation issued January 20, 2021, directing a pause in the construction of the border wall and a pause in obligation of funds for the wall, does not violate the Congressional Budget and Impoundment Control Act of 1974 (ICA). Further, 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 ICA.
The Secretary of Homeland Security has decided that existing barrier construction projects will now comply with statutory requirements under environmental and other laws, and will not exercise discretionary statutory waiver authority for new construction projects. Funds appropriated to DHS in previous fiscal years for border barriers are almost fully obligated, and construction has been suspended for some projects to rescope the projects to mitigate environmental damage and minimize the impact on border communities, consistent with statutory requirements. Funds appropriated to DHS in fiscal year 2021 for border barriers have not yet been obligated because DHS must first comply with environmental, procurement, and other statutory prerequisites prior to obligating these funds for new projects. In addition, before DHS obligates its 2021 funds, it must determine project funding needs in light of project changes. Delays in the obligation and expenditure of funds in these circumstances are programmatic delays, not impoundments.
In order to facilitate Congress’s oversight of executive spending and help ensure the President does not substitute his own policies and priorities in place of those established through the legislative process, we have suggested that congressional oversight and appropriations committees consider requiring OMB and DHS to submit a timeline detailing the planned uses and timeframes for obligating DHS’s fiscal year 2021 appropriation.
This decision is distinguishable from our decision regarding the impermissible withholding of Ukraine security assistance funds. In that previous decision the uses of the funding had been planned for by DOD, and DOD even certified to Congress that statutory prerequisites had been satisfied. Here, DHS is required to satisfy statutory prerequisites under environmental and other laws before it may obligate and spend its border barrier appropriations.