40 GOP Senators Allege Biden’s Border Wall Freeze Is Illegal

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Dozens of GOP senators alleged in a Wednesday letter that President Joe Biden’s freeze on border wall construction is a violation of federal law.

Sen. Shelley Moore Capito, joined by 39 GOP senators, wrote a letter to the Government Accountability Office (GAO) requesting a legal opinion on Biden’s executive order to freeze funding for border wall construction. The senators say this order both violated the Impoundment Control Act (ICA), which prohibits the executive branch rejecting congressional funding, and contributed to the current border crisis.

“As these unlawful pauses have proceeded, the rate of illegal crossings has surged, creating a crisis amongst our southern border, at times with tragic consequences” the West Virginia senator wrote. “Meanwhile, billions in unlawfully appropriated dollars, which were provided by Congress to address precisely this issue, sit unused by the Biden Administration.”

The only lawful reason to freeze funds would be if Biden proposes a deferral, rescission, or point to a necessary step to begin a program, according to the letter. This would result in funds being put off until a later date, cancelled, or spending less money than was appropriated.

In either case the president must provide a reason for the decision to Congress, according to the letter.

The president can only defer funds to provide contingencies, achieve savings through greater efficiency of operations, or as specifically provided by the law, and for issues related to fiscal policy, according to the letter.

Freezing funding based on policy disagreements violates the ICA, according to the House Committee on the Budget.

The letter said Biden “bemoans” the construction of the border wall saying it is “not a serious policy solution” and “a waste of money.” The senators also said he cannot “unilaterally” freeze funding because he disagrees with the border wall’s construction.

The senators clarified that Biden has a right to issue a statement challenging the policy, but that he needs congressional approval to seize border wall funding.

 “It is his right to levy those criticisms, and he is free to propose budgets that advance his alternative approach for securing our nation’s borders,” the letter says. “But he cannot unilaterally impound funding provided by Congress in duly enacted appropriation laws.”

The letter cited an earlier GAO ruling against former President Donald Trump’s halt on security aid for Ukraine in 2019. The former administration’s halting of Ukraine aid was brought up during Trump’s impeachment proceedings in 2020.

The GAO ruled that the Trump administration violated the ICA for its handling of $400 million in congressional appropriations in security aid to Ukraine, according to the Government Executive. The administration withheld approximately $214 million in Defense Department funds and about $168 million in State Department aid.

Congress approved $1.4 billion in border wall funding as part of Trump’s $900 billion coronavirus stimulus package, Fox News reported.

Sens. Mitch McConnell and Marco Rubio were among the forty senators that signed the letter.

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