EXCLUSIVE: Biden’s order to halt border wall construction is likely illegal, experts say

The Washington Times:

President Biden’s directive pausing border wall construction is probably illegal, several experts told The Washington Times, saying he has the power to cancel Defense Department money that was being funneled toward the project, but he went too far by halting construction paid for by money Congress had specifically approved for the wall.

Mr. Biden’s order last week also put 5,000 people out of work, and will waste “billions” of dollars to pay off contractors for work that will no longer be done, said the man who oversaw construction for the Trump administration.

Mark Morgan, who was acting commissioner of Customs and Border Protection, told The Washington Times in an exclusive interview that as of Jan. 20 they were still spending money Congress had approved three years ago on wall construction, and a president is required to carry that out.

The president just can’t unilaterally say ‘Congress, what you appropriated funding for, no, I’m not going to do that,’” Mr. Morgan said. “He was basically telling CBP to break the law to stop construction.”

Some 460 miles of wall built under Mr. Trump, and Homeland Security had plans — and funding — to erect more than 300 more miles, Mr. Morgan said.

All of that came to a halt soon after Mr. Biden’s Inauguration Day proclamation.

Border officials said the only exceptions were a few spots where crews had to do quick safety fixes, such as covering up open trenches or tying down loose material, before they parked the backhoes and put down the shovels.

Some of the ongoing construction was being paid for with money President Trump had siphoned from Department of Defense accounts under his border emergency. Experts said Mr. Biden was within his powers to revoke the emergency and reclaim that money.

But Congress also allocated $.1375 billion each year from fiscal year 2018 through the current fiscal year 2021 specifically toward wall construction.

That’s where Mr. Biden’s halt may run into trouble, according to Louis Fisher, a leading scholar on presidential and congressional powers.

“If he is halting the expenditure of DOD funds — that Trump reprogrammed to build the wall — I think Biden is acting properly. If Biden is doing more then he might be acting improperly,” said Mr. Fisher, who spent four decades as the Library of Congress’s senior specialist on separation of powers issues. “Congress did appropriate some funds for the wall, although less than Trump requested. Withholding that money, I think, would be improper.”

Mr. Biden, in issuing the halt, called the wall “a waste of money that diverts attention from genuine threats.”

His order paused both current and planned construction “to the extent permitted by law.” He also ordered a review of the consequences of canceling the projects outright. Mr. Biden made an exception “to ensure that funds appropriated by the Congress fulfill their intended purpose.”

In practice, sources told The Times, the wall was halted across the board.

James P. Pfiffner, professor emeritus at George Mason University and an expert on presidential powers, said he wasn’t familiar with the specifics of the wall, but said in general presidents are required to spend money as Congress directed — though they can fudge the timing.

“If Congress appropriated money for the wall, it should be spent,” he said. “The president has some discretion over the timing of expenditures, and it is reasonable for some funds to be delayed. If it was a significant delay, the administration should notify Congress with a deferral notice, but it cannot defer spending past the end of a fiscal year.”

Mr. Pfiffner did offer another possibility. He said the Biden team could claim fungibility of funds.

Congress allocated $4.125 billion for wall construction from 2019 through 2021. As long as Homeland Security has spent that much — even if some of it came from siphoned Pentagon money — it could argue it’s fulfilled Congress’s intent, and it can try to return the other money.

Congress’s power to control spending is a fundamental tenet of government.

That was one of the problems Mr. Trump faced in 2019, when he delayed sending security assistance money to Ukraine. The Government Accountability Office ruled that he had violated the Impoundment Control Act, and that became evidence against him in his first impeachment trial.

“Faithful execution of the law does not permit the president to substitute his own policy priorities for those that Congress has enacted into law,” the GAO ruled in the Trump case.

More at The Washington Times

Join now!