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Legal verdict on Biden’s hold on border wall funds could come soon

A stretch of border wall near Ysleta on Wednesday, Aug. 26, 2020.

Congressional investigators are working on a legal opinion of President Joe Biden’s hold on border wall construction funds that could emerge as soon as this month, if history is any guide.

The Government Accountability Office began looking into Biden’s pause on the funding after the president announced on Jan. 20 he was stopping construction of the southern border wall and freezing funds for it. That money included what was left of a $1.4 billion appropriation for wall construction for the current fiscal year, as well as funds that were shifted from other accounts and any other remaining balances.

The GAO, Congress’ investigatory arm, is looking into the same issues with Biden’s hold on the wall appropriations that it did when it said the Trump administration violated the 1974 budget law governing “impoundments” of money appropriated by Congress. An illegal impoundment occurs when a president stops the funds from being obligated or spent without proper justification and in a manner contrary to congressional intent.

In a letter Wednesday to Rep. Jason Smith of Missouri, the ranking Republican on the House Budget Committee, the GAO noted it took about five months to render an opinion on former President Donald Trump’s temporary hold on military aid to Ukraine in 2019.

In that case, the agency concluded Trump violated the 1974 impoundment law. The letter to Smith was signed by GAO General Counsel Thomas H. Armstrong, who also wrote the agency’s decision on the Trump Ukraine pause.

The Biden hold has now gone on for more than four months, more than twice as long as Trump’s Ukraine withholding. But the Trump pause occurred later in the year, when the funds risked expiring when the fiscal year ended on Sept. 30.

The Biden administration has said the hold on wall funding is legal but has not detailed its reasons. The Trump administration also said its temporary hold was legal and noted that the GAO, a legislative agency, has no authority over the executive branch.

Senate and House Republicans have accused Biden of violating the law and pressed GAO to render a legal opinion.

The agency said it asked for and received responses from the Office of Management and Budget and Department of Homeland Security as part of its investigation.

“We reach our conclusions after careful research and independent analysis of statutory and case law as well as consideration of analogous precedent and legal principles,” the GAO said in the letter to Smith.

House Budget Committee Republicans sent a letter to the congressional investigators on May 25 requesting an update on the inquiry. On March 17, more than three dozen Senate Republicans requested a GAO investigation, which the agency said later had already begun.

Even if the GAO decides the Biden hold is illegal, there are no penalties in current law — though of course in Trump’s case, Democrats in control of Congress attempted to impose the ultimate penalty for a president, impeachment and removal from office.

In more typical circumstances, Congress has no recourse unless its investigators file a lawsuit against the administration to release the funds — a rare event in the past.

The GAO has sued for release of withheld money only once since the impoundment law was enacted, in 1975 when President Gerald Ford sought to cancel $264 million for a subsidized housing program. The lawsuit dragged on for seven months until a surprise announcement from the Department of Housing and Urban Development that it would reactivate the program in revised form, and the case was dismissed.

House Budget Chairman John Yarmuth, D-Ky., has pushed legislation that would add penalties for illegally holding funds.

Yarmuth’s bill would authorize administrative discipline for government employees who violate the impoundment law, including potentially suspension without pay or termination; strengthen GAO’s ability to obtain information from government agencies; and require the executive branch to make its “apportionments,” or the process by which OMB releases appropriated funds, public.

Yarmuth introduced the bill last year and held a Budget Committee hearing on the issue in April, though he hasn’t reintroduced the measure under the Biden administration in the 117th Congress.

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(c) 2021 CQ Roll Call

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