Remember when it was illegal for the White House to unilaterally freeze money allocated by Congress for a specific purpose, even for a time?
You may not remember. Democrats certainly don’t remember. As the old commercials went, Pepperidge Farm remembers, and Republicans certainly do.
Whether the Government Accountability Office does is another question entirely, but it’s now investigating President Joe Biden for doing the exact same thing the GAO ruled Donald Trump couldn’t do when he was in the White House, according to Politico.
That’s because, mere hours after becoming president, Biden used an executive order to suspend all work on the border wall and froze money budgeted by Congress for its construction. The reason, naturally, was that Biden campaigned on doing as close to a 180 on Donald Trump’s immigration policies as law would allow — and that stopping the building of what Trump was fond of referring to as his “big, beautiful wall.”
The problem arises when you consider that whole “as law would allow” part. In fact, barely more than a year before Biden issued his order, House Democrats impeached then-President Trump partially on the basis that his 2019 decision to suspend military funding to Ukraine, even temporarily, violated the Impoundment Control Act.
The Democrats’ case was bolstered by a ruling by the GAO in which the nonpartisan government watchdog office found the decision to pause funding was illegal.
“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 declared in a Jan. 16, 2020, report.
Democrats were only interested in this because the Trump administration’s Office of Management and Budget issued a temporary hold on the money to the government of Ukraine President Volodymyr Zelensky on the basis that it wasn’t investigating certain allegations of corruption — in particular, corruption involving the energy concern Burisma, which so happened to have a man named Hunter Biden sitting on its board in December 2015 when then-Vice President Joe Biden later bragged he ordered Ukraine to fire a prosecutor who was investigating it.
However, the GAO’s eight-page report didn’t have the words “Hunter Biden” or “Burisma” in it. Nor, in fact, did it mention the “pattern of abuse” Democrats claimed the Trump administration was engaged in regarding disbursement of congressionally apportioned money, according to Politico.
It didn’t mention that the funding freeze was temporary. It didn’t mention the money was eventually disbursed to Ukraine. The GAO simply said that Trump’s “OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA).”
Now, imagine a president did the exact same thing, only the freeze was meant to be permanent and part of a wider policy initiative on immigration. That’d be equally illegal, right?
On Tuesday, Politico reported that the GAO was investigating whether the Biden administration’s move had violated the same law it said the Trump administration broke.
“An unfavorable ruling from GAO would bolster Republicans in branding Biden as a rule-breaker as they blame him for the surge of migrants and unaccompanied children at the southern border,” Politico reported.
The investigation was prompted by letters from Republicans in the House and Senate Republicans asking for a ruling on the freeze in funding.
Politico’s Caitlin Emma delicately phrased the administration’s decision as “Biden hit[ting] pause on billions of dollars set to be spent on his predecessor’s long-touted barrier between the U.S. and Mexico while his administration figured out next steps for the money.”
The problem is, those next steps will have absolutely nothing to do with what the money was supposed to be for — something Senate Republicans noted in their letter was a “blatant violation of federal law and infringe on Congress’s constitutional power of the purse.”
“On January 20th, in one of the first official acts of his presidency, Joseph Biden suspended border wall construction and ordered a freeze of funds provided by Congress for that purpose,” read the March 17 letter, signed by 40 Republican senators.
“In the weeks that followed, operational control of our southern border was compromised and a humanitarian and national security crisis has ensued. The President’s actions directly contributed to this unfortunate, yet entirely avoidable, scenario. They are also a blatant violation of federal law and infringe on Congress’s constitutional power of the purse.”
The letter, authored by ranking Senate Appropriations Committee member Sen. Richard C. Shelby of Alabama and ranking subcommittee member Sen. Shelley Moore Capito of West Virginia, stated the Biden administration had “violated the Impoundment Control Act (ICA), as interpreted by your office” and added that “[p]rompt action to end these violations is required to restore order at the border.”
Biden under investigation for border wall cash freeze https://t.co/PRDDxXqTIS
— POLITICO Pro (@POLITICOPro) March 23, 2021
Biden said during the campaign that “not another foot of wall” would be constructed under his administration. However, as GOP senators’ letter stated, the “line-item appropriations were the subject of protracted congressional negotiation and are quite specific, providing the permissible design of the barrier to be construction and the location of its placement.”
Indeed, according to the senators’ letter, the specific language in the appropriations bill calls “for the construction of barrier system along the southwest border” that “shall only be available for barrier systems that” were approved and constructed with the Department of Homeland Security’s Border Security Improvement Plan.
The Biden administration has promised to release the money if its pause is found to have violated the Impoundment Control Act. However, Politico noted, “[t]he Biden administration still plans to spend the border wall funds, and agencies could ultimately divvy up the dollars for other wall-related purposes allowed by law, like fencing repairs.”
But that’s not what the bill said — the money is for construction of the wall.
The Biden administration also characterized the pause as a “programmatic delay,” the same thing the Trump administration said about the delay of military aid to Ukraine. But that’s even more illegal: If the Trump administration’s delay of money that was eventually disbursed for exactly what it was meant for ran afoul of the law, the Biden administration’s decision to delay the money in order to completely repurpose it blatantly stomps on the ICA.
Biden’s party may forget that Sen. Patrick Leahy, a notoriously partisan Vermont Democrat, said last January of the GAO report on Trump’s Ukraine pause: “I have never seen such a damning report in my life.”
“I mean, this is a nonpartisan thing. I read it twice,” he said, Politico reported back in January 2020. “To have something saying this is such a total disrespect of the law. It’s unprecedented.”
My guess is Leahy conveniently doesn’t remember this, either.
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