The Government Accountability Office ruled Tuesday that President Biden was within his powers to stop border wall construction, calling it a “programmatic” delay, not an attempt to thwart the will of Congress.
The ruling is a major blow to Republicans who had argued the halt was an illegal “impoundment” of money.
GAO, which is Congress’ investigative branch, ruled that Mr. Biden issued the halt so the Department of Homeland Security could further study the routes the wall is supposed to take. That makes it an acceptable delay.
Had the GAO ruled the intent was to derail the spending, it could have been deemed illegal.
Mr. Biden has said his intention was to stop the wall, but GAO said the actions taken so far don’t rise to that level.
Thomas H. Armstrong, GAO’s general counsel, said there are still questions about how the wall project proceeds. He said Congress could require the Biden administration to submit a timeline to show it does plan to use the money Congress allocated.
“A detailed timeline could serve as a tool for rigorous oversight to ensure the president does not substitute his own policies and priorities in place of those established through the legislative process,” he said in his ruling.
Congress has earmarked about $5 billion in wall money since 2017, with a new post of $1.375 billion approved for the current fiscal year.
Much of the money remains unspent.
Republicans argued Mr. Biden’s border wall pause is similar to President Trump’s decision in 2019 to halt security assistance money destined for Ukraine. GAO did rule that move illegal, and it played a role in the first impeachment trial of Mr. Trump.
But Mr. Armstrong said the wall decision was different because the Trump team didn’t give good enough reasons for the delay in the Ukraine money.
In the case of the wall, he said, there are laws that the past administration waived but that the new administration doesn’t want to waive. Mr. Armstrong said working through those issues is a legal reason to derail Congress’ intended spending.
Rep. Jason Smith, the top Republican on the House Budget Committee, said he feared the Biden team will consider the ruling a green light for more aggressive moves against Congress’ powers.
He also questioned the GAO’s attempt to distinguish the Ukraine and wall decisions.
“To be clear, the only thing that has changed since GAO’s opposite ruling on a similar matter in 2019 is the occupant of the White House,” Mr. Smith said.
Mr. Smith said the current surge of illegal immigrants at the U.S.-Mexico border is evidence for why wall construction is needed.
Tuesday’s ruling, while backing the pause, does not excuse Mr. Biden from spending the money eventually.
Last week Homeland Security Secretary Alejandro Mayorkas acknowledged that the money Congress has allocated must be spent on border barrier construction.
Some of the money will be spent on repairing soil erosion that he said was spawned by Trump wall construction. But he acknowledged that won’t absorb all of the billions still to be spent, and he asked Congress to pass a new law revoking the money.
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