Department of Homeland Security—Border Barrier Construction and Obligations

Decision

Matter of: Department of Homeland Security—Border Barrier Construction and Obligations

File: B-335747

Date: April 22, 2024

In response to a congressional request, this decision addresses whether the Department of Homeland Security (DHS) has complied with the Impoundment Control Act (ICA) as it executes amounts appropriated specifically for border fencing or barriers for fiscal years 2018, 2019, 2020, and 2021.[1] Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, title X, §§ 1001–1017, 88 Stat. 297, 332–339 (July 12, 1974), 2 U.S.C. §§ 681–688.

In accordance with our regular practice, we contacted DHS to seek factual information and its legal views on this matter.[2] DHS provided both in its response.[3]

BACKGROUND

Congress appropriated funds to DHS for a barrier system or fencing for fiscal years 2018 through 2021.[4] On January 20, 2021, the President issued a Proclamation pausing border barrier construction and obligations to the extent permitted by law.[5] The Proclamation also ended the prior Administration’s emergency declaration, stating the new policy that “no more American taxpayer dollars be diverted to construct a border wall.”[6] Among other things, the Proclamation further directed the Secretaries of Homeland Security and Defense to work with other officials and develop a plan for redirecting border wall funds.[7]

In a 2021 decision, we reviewed the Proclamation’s pause. B‑333110, June 15, 2021. We concluded neither the Proclamation nor its implementation violated the ICA. First, DHS had almost fully obligated its fiscal year 2018, 2019, and 2020 appropriations for barrier construction.[8] Second, although most of DHS’s 2021 appropriation was unobligated, the delays stemmed from DHS meeting statutory requirements and developing funding plans. Therefore, these delays were programmatic, not impoundments.

Also in 2021, DHS issued its Border Wall Plan outlining how it would use barrier funds.[9] As relevant here, the plan stated DHS would “undertake a thorough review and replanning process” for projects funded by its fiscal year 2017 through 2020 appropriations.[10] This process could include rescinding or revising legal waivers issued under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA);[11] conducting standard environmental planning; assessing the use of barrier funds to remediate or mitigate environmental damage from past border wall construction; consulting with stakeholders; and reviewing pending eminent domain actions.[12] For the fiscal year 2021 funds, the plan set the following priority order for their use: addressing contingencies; closing out or remediating former Department of Defense (DOD) projects; and planning the next highest priority projects.[13]

In July 2022, DHS amended its plan.[14] The amendment stated DHS would “prioritize the expenditure of the FY18-2021 appropriations” to continue addressing remediation and mitigation requirements from past barrier construction, and to “install barrier system attributes” in areas with physical barriers.[15]

In October 2023, the Secretary of Homeland Security issued a determination waiving 26 federal laws to expedite the construction of barriers and roads in an area of “high illegal entry” in Texas.[16] He did so by invoking his authority under IIRIRA to waive all legal requirements that, in the Secretary’s sole discretion, are necessary to ensure expeditious barrier construction.[17]

The consistency of DHS’s border wall expenditures with the purpose statute, 31 U.S.C. § 1301(a), is the subject of ongoing federal court litigation. See General Land Office of Texas v. Biden, Civil Action No. 7:21-cv-00272, and Missouri v. Biden, Civil Action No. 7:21-cv-00420 (S.D. Tex., Mar. 8, 2024) (Tipton, J.) (granting a preliminary injunction barring DHS from using its fiscal year 2020 and 2021 barrier appropriations for activities other than constructing “new physical barriers (or their equivalents) at the Southwest border”). We do not address the purpose statute here in our analysis of DHS's rate of obligation in compliance with the ICA.

DISCUSSION

At issue is whether DHS has continued to obligate amounts appropriated specifically for barrier construction for fiscal years 2018 through 2021.[18] We conclude that it has.

Unless Congress has enacted a law providing otherwise, executive branch officials must take care to ensure that they prudently obligate appropriations during their period of availability. B‑329739, Dec. 19, 2018; B-330330, Dec. 10, 2018. The amount of time required for prudent obligation, however, will vary from one program to another. B‑330330. The ICA imposes no specific requirements on the executive branch as to the rate at which it must obligate or expend budget authority. B‑319189, Nov. 12, 2010.

The ICA allows the President to withhold funds from obligation, but only under strictly limited circumstances and only in a manner consistent with that Act. B‑329739; B-330330. The President has no unilateral authority to withhold funds from obligation. B‑330330. In particular, agencies may not withhold amounts from obligation for policy reasons: “[f]aithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law.” B‑331564, Jan. 16, 2020. A violation of the ICA may result where an official within or outside of an agency, such as in the Office of Management and Budget (OMB), directs the withholding of budget authority. B‑331298, Dec. 23, 2020.

The Administration’s stated policy Is that “no more American taxpayer dollars be diverted to construct a border wall.”[19] But the ICA does not forbid executive branch officials from having policy preferences. See B-331564. Rather, it does not permit the executive to withhold amounts because of those preferences. Id. Thus, the central issue in our analysis is not the Administration’s stance on the desirability of the construction of a border wall but, rather, is whether DHS has obligated appropriated amounts in a manner consistent with the ICA.

As an initial matter, we note that DHS states OMB has not ordered it to withhold from obligation any amounts appropriated for border barrier construction.[20] DHS also states that at no time has it withheld barrier amounts from obligation.[21] Therefore, we turn to DHS’s actual obligations to determine whether there is any indication of an improper withholding. We conclude there is not.

Fiscal years 2018-2020 barrier funds

As in our prior review, DHS has almost fully obligated the amounts appropriated for fiscal years 2018 and 2020 for barrier construction projects.[22] As of January 8, 2024, DHS obligated nearly all of the $1.375 billion appropriated for fiscal year 2018, leaving an expired balance of $340,000.[23] However, sound administrative funds control practices may reasonably result in small amounts of expired, unobligated balances. B‑333110, June 15, 2021. The rate at which DHS has incurred obligations against its 2018 appropriation is, therefore, consistent with the ICA.

As of January 8, 2024, DHS has obligated 84 percent of the amount appropriated for fiscal year 2019, down from a corresponding amount of 98 percent as of March 31, 2021.[24] DHS states the lower obligated balance is due to “variables in the contracting process” beyond its control.[25]

Programmatic delays occur when an agency is taking reasonable and necessary steps to implement a program or activity, but the obligation or expenditure of funds is unavoidably delayed. B‑331564.1, Feb. 10, 2022. Here, DHS explains it intended to use $274 million of its remaining unobligated fiscal year 2019 barrier funding to build additional barriers in Texas.[26] But on September 8, 2023, the U.S. Army Corps of Engineers (USACE), with which DHS had entered into an interagency agreement, deobligated and returned $114 million in fiscal year 2019 funds.[27] Accordingly, DHS immediately began planning to award a contract for a project it believed would almost fully obligate its remaining fiscal year 2019 funds.[28] Though DHS awarded the contract on September 28, 2023, the successful bid was lower than expected and thus did not require DHS to obligate its entire remaining balance.[29] With only 2 days remaining before the fiscal year 2019 funds expired on September 30, 2023, DHS lacked sufficient time to plan and award contracts to obligate the remaining balance.[30] As a result, the fiscal year 2019 appropriation has an expired balance of $146.4 million.[31]

DHS’s explanation is sufficient to show these events constitute a programmatic delay. DHS was taking reasonable and necessary steps to use its remaining unobligated fiscal year 2019 barrier funds, but the project’s complex contracting process and USACE’s late return of unobligated funds prevented DHS from prudently obligating the funds before the fiscal year’s end.[32] Therefore, we find these circumstances reflect a programmatic delay, and that DHS did not intend to withhold those amounts from obligation in violation of the ICA. See B‑329092, Dec. 12, 2017 (ICA violations “hinge on whether the agency clearly intended to withhold the obligation of budget authority”).

As of January 8, 2024, DHS has obligated most of the $1.375 billion appropriated for fiscal year 2020, leaving an unobligated balance of about $12 million.[33] This amount remains available for obligation through September 30, 2024.[34] This remaining balance represents less than 1 percent of the amount appropriated. This amount stands in reasonable proportion both to the time that has elapsed since these funds first became available in calendar year 2019 and to the several months that these funds will remain available for obligation before they expire at the end of fiscal year 2024. Thus, as with its obligations of its 2018 appropriation, the rate at which DHS has incurred obligations against its 2020 appropriation is also consistent with the ICA.[35]

Fiscal year 2021 barrier funds

As of January 8, 2024, DHS had obligated about 47 percent of its $1.375 billion appropriation for barrier construction for fiscal year 2021, with about 48 percent of that appropriation remaining available for obligation.[36] DHS states it is taking steps to select barrier projects for funding per its amended Border Wall Plan, and it will continue to do so until these funds expire on September 30, 2025.[37] Thus, these funds will remain available for obligation for more than one full fiscal year, DHS states that it will continue to obligate them consistent with a written plan, and we are aware of no order to withhold these funds from obligation. Considering these factors, the unobligated balance of the 2021 appropriation does not suggest an improper impoundment, and we conclude that the rate at which DHS is incurring obligations against this appropriation is consistent with the ICA.

Discretionary authority to waive legal requirements

Finally, we note that nothing in the ICA requires the Secretary of Homeland Security to expedite barrier construction by exercising his discretionary authority to waive legal requirements. The Secretary has statutory authority to waive all legal requirements where determined necessary to ensure expeditious construction of barriers along the border. B‑333110, June 15, 2021. Crucially, this broad authority is discretionary: IIRIRA provides the Secretary with “a choice of whether to waive any laws and, if so, which laws to waive.” Id. at 13 n.59.

Agencies must take reasonable and necessary steps to implement programs and to prudently obligate amounts. B‑329739, Dec. 19, 2018; B‑330330.1, Dec. 10, 2018. But the ICA imposes no “specific requirements on the Executive Branch as to the rate at which budget authority must be obligated or expended.” B‑319189, Nov. 12, 2010. Applying these principles here, the ICA does not compel the Secretary to use IIRIRA’s waiver authority to achieve a certain result relative to barrier construction. Regardless of whether the Secretary exercises this authority, so long as DHS is prudently obligating amounts and not improperly withholding them, there is no ICA violation. Therefore, the ICA does not require the Secretary to issue waivers to expedite barrier construction.[38]

CONCLUSION

Since our 2021 decision, DHS has continued to incur obligations against amounts appropriated specifically for border barriers for fiscal years 2018 through 2021 at a rate consistent with the ICA.

Edda Emmanuelli Perez
General Counsel