On his first day in office, President Joe Biden might have done worse than just create a crisis that has consumed the early months of his presidency. According to forty Senate Republicans, he allegedly broke the law by unilaterally halting construction of a southern border wall.
The dreaded I-word in this case is impoundment, but the precedent set by the first impeachment of President Donald Trump seemingly raises the stakes of violating the Impoundment Control Act (ICA).
The forty Republicans, in a letter, requested the Government Accountability Office (GAO) investigate whether Biden violated the ICA, a 1974 law meant to rein in the executive prerogatives on congressionally appropriated spending. Signers ran the gamut from GOP Leader Mitch McConnell, conservatives such as Rand Paul and moderates such as Susan Collins.
The letter to Gene L. Dodaro, the GAO comptroller general, wasn’t audacious. But it didn’t it shy away from the GAO’s opinion issued just as Trump’s 2020 Senate impeachment trial was about to begin.
“Not long ago, in a decision captioned ‘Office of Management and Budget – Withholding of Ukraine Security Assistance’, your agency applied these legal principles to a set of factual circumstances remarkably similar to the ones here,” the GOP letter to Dodaro says. It goes on to quote the GAO’s 2020 opinion on the Trump administration and congressionally-approved money for Ukraine, stating the budgetary law must be enforced, or “we will open the floodgates for this and future Administrations to violate the ICA with impunity”
No one has—nor should they—suggest that Biden’s executive actions on the border are impeachable. The point here is that when Democrats moved to impeach Trump regarding the infamous phone call with Ukrainian President Volodymyr Zelensky, the only identifiable violation of the law they could come up with was the Impoundment Control Act, for not sending the congressionally-approved money for Ukraine in a timely manner. Now, in a stand-off over executive branch vs. legislative branch powers, the Senate minority is accusing Biden of the same violation.
The GAO’s investigation may well determine Biden violated the ICA. So then what? Typically, such matters can be resolved by making it right—meaning the executive branch fully authorizes the duly enacted appropriation passed by Congress and signed by the president.
One Republican who didn’t sign the recent letter was Sen. Mike Lee, who in 2020 said the GAO “beclowned themselves” with the opinion on Trump. In an interview for my book, “Abuse of Power” Lee added, “Violation of the Impoundment Control Act is to government operations what accidentally removing a do-not-remove tag from a mattress or failing to signal three seconds before making a turn.”
Perhaps that was previously the case, but given that the GAO’s finding in the Trump Ukraine impeachment scandal was based on “legal principles to a set of factual circumstances remarkably similar to the ones here,” the hazards of a violation could be at least somewhat more concerning.
To be clear, the ICA was not an impeachment charge in the House in 2019. After tossing around words such as “bribery” or “extortion” for Trump and Ukraine that didn’t logically stick, the Democratic House members settled on the vague charges of “abuse of power” and “obstruction of Congress.” The GAO finding came after the House voted to impeach Trump.
The Impoundment Control Act of 1974 provides the executive branch only narrow and limited discretion in spending money appropriated by Congress and signed into law by the president in the budgetary process. The only way for the executive branch to avoid spending the money, is if the president transmits to Congress a special message proposing the deferral of the funds; transmits to Congress a special message proposing the permanent rescission of those funds; or can point to a programmatic delay responsible for the pause in obligation.
“Failing that, the pauses ordered by the [Biden] proclamation are an unlawful impoundment and an assault on Congress’s constitutional power of the purse,” the GOP letter to the GAO chief says. “The Biden Administration has pursued none of these paths.”
Specifically in this case, Congress passed and President Donald Trump signed bills to fund the Department of Homeland Security in 2020 and 2021 that provided about $3 billion “for the construction of barrier system along the southwest border.” By the end of 2020, DHS has built or repaired 112 miles of border wall. Then, on January 20, after being sworn in, Biden issued a proclamation directing the DHS and the Office of Management and Budget to “pause immediately the obligation of funds related to construction of the southern border wall” and to “pause work on each construction project on the southern border wall.”
President Barack Obama had his own run-ins.
In October 2011, the GAO determined Obama’s White House Office of Science and Technology violated two budget laws in dealing with China. In 2014, the GAO determined that Obama violated the law with a prisoner deal to exchange Guantanamo Bay detainees for deserter Bowe Bergdahl. Again, in 2016, the GAO, determined the Obama administration’s Health and Human Services Department violated federal law by paying money to insurance companies that the Obamacare law required to go to the Treasury Department.
GAO findings on presidents running afoul of appropriations laws do not generally qualify as a national crisis, well, at least not until 2019. Further, the GAO can only provide opinion and doesn’t adjudicate cases.
The impoundment law may never have a presence in another impeachment. Still, the law’s prominent role in one impeachment will likely make future violations at least a bit of a black mark on a presidency.
Fred Lucas, the author of Abuse of Power: Inside the Three Year Campaign to Impeach Donald Trump (Post Hill Press, 2020), is the chief national affairs correspondent for The Daily Signal and co-host of the "The Right Side of History" podcast.