Letter to Gene Dorado, Comptroller General of the Government Accountability Office - Capito, Shelby Correct False Claims by Biden Administration on Border Wall Construction

Letter

Dear Mr. Dodaro,

We recently wrote to you along with 110 of our colleagues regarding President Biden's January 20th Proclamation pausing border wall construction and the obligation of funds for that purpose.1 In response to that submission, the Administration has made repeated false or misleading claims about the extent and nature of its actions. We write now to supplement the record with evidence responding to those claims.

First, despite the Administration's suggestions to the contrary,2 until very recently, all border wall construction projects were in a total and complete pause, and no funds, including funds directly appropriated to the Department of Homeland Security (DHS) for the construction of a border wall system, were being obligated by the Department.3 While DHS announced on April 30, 2021, that it was lifting the pause in two isolated cases,4 all other construction across the southwest border -- from South Texas to the San Diego shoreline -- remains unlawfully halted, as it has been since the President made his Proclamation on January 20th.

The pause has created a confounding set of circumstances at the border. Replacement projects -- in progress for years -- sit frozen, on the brink of completion. See Attachment A (San Diego Sector -- Imperial Beach Replacement Construction). Incomplete installations have left gaps in the border wall system, both seen and unseen. Breaks in the physical infrastructure serve as funnels for illegal crossing, human trafficking, and drug smuggling; create environmental hazards; and unnecessarily tax our Border Patrol agents, who have to sit post at these breaks around the clock. Additionally, ground sensing technology and cameras that enhance the operational effectiveness of the
physical barriers await installation or, worse, are installed but not turned on. See Attachment B (San Diego Sector Wall Gaps). And in many cases, the materials needed to finish these projects sit feet away -- a jarring reminder of the unthinking nature of this Presidential directive. See Attachment C (Wall Waits for Installation).

Each of these is proof of the President's illegal pause, and as we explained in our original submission, the harm it is causing is not merely theoretical. Each day this impoundment continues, funds lawfully appropriated for border wall construction are cynically under-executed and a reserve is growing, which the Administration has already targeted for rescission in its budget request.5 Worse, in the midst of an unprecedented and rapidly metastasizing crisis at the border, the construction pause has compromised operational control of the border and created unnecessarily
dangerous conditions for our brave law enforcement personnel.

Second, the Administration has repeatedly indicated that the President's pause is being carried out only "to the extent permitted by law." But the suggestion that the law permits this pause is entirely without merit. The law does not permit the pause as it was ordered in the President's Proclamation. At all. As explained in our original submission, in order to withhold the funds in question the President would need to either (1) transmit to Congress a special message proposing a deferral or rescission of the funds or (2) point to a programmatic delay impacting the execution of the funds.6

The President has not sent a special message to Congress proposing a deferral or rescission, and there is no programmatic delay impacting the execution or obligation of the funds appropriated for the construction of a border wall system. In its legal opinions, your office has been clear: a programmatic delay exists when the agency is making reasonable efforts to implement a program but cannot do so because of factors external to the executive branch and outside of its control.7

For the most part,8 the Administration, as directed by the Proclamation, is making no effort to implement construction of the border wall system and, even if it was, there are no external factors to justify the delay. To the contrary, the delay here is entirely of the President's making, and we know from recent experience that the executive branch may not point to a delay of its own making and label it "programmatic."9 Moreover, the current external factors -- namely, the most acute immigration crisis in recent memory -- support expediting work on the border wall system, not halting it. The current pause is all the more frustrating given that the implementation of border wall construction was well underway when the President made his Proclamation.10 For all of these reasons, the Proclamation's direction is entirely irreconcilable with the law.

GAO has rightly concluded that "[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."11 Yet, President Biden's border wall pause continues. It must end, both to vindicate Congress's power of the purse and to help address the crisis at our southern border.

We hope this information proves useful to you as you consider our request and makes clear the true nature of the Administration's unlawful actions.

Respectfully,

Source