Paoletta: Joe Biden ‘100 Percent’ Violated Federal Law by Withholding Border Wall Funds

Former Trump administration lawyer Mark Paoletta told House Budget Committee ranking member Rep. Jason Smith (R-MO) Thursday that the Joe Biden administration violated the Impoundment Control Act by withholding federal funds for the border wall.

A veteran of Washington’s political battles, Paoletta served as general counsel of the Office of Management and Budget (OMB), the powerful White House agency in charge of all federal budgeting, spending, and regulatory actions. Now a senior fellow at the Center for Renewing America, he testified before the House Budget Committee’s hearing, “Protecting our Democracy: Reasserting Congress’ Power of the Purse.”

During the hearing, Smith and Rep. Lloyd Smucker (R-PA) asked Paoletta about the Biden administration’s withholding of federal funds appropriated to construct the wall along the southern border. Biden froze border wall funds on his first day in office.

Congress enacted the Impoundment Control Act of 1974 (ICA) to prevent the president and other government officials from unilaterally substituting their own funding decisions from those of Congress.

Before the ICA, presidents routinely declined to spend all of an appropriated sum if they could complete Congress’s goal for less than the full amount. The ICA makes it illegal to do so unless Congress passes a new law — called a rescission — taking back the remaining funds.

Smith asked Paoletta, “Do you believe that the executive branch violated the GAO standard of the Impoundment Control Act when it began withholding funds for the border wall?”

Paoletta responded, “100 percent.”

Paoletta explained when Trump temporarily delayed Ukraine aid for 50 days to assess changing circumstances in that region, after which OMB released the funds per Congress’s annual spending laws, congressional Democrats and Congress’s Government Accountability Office (GAO) cried foul and called it an ICA violation. He then noted the Biden administration admits the current president intends to circumvent Congress by permanently withholding funds for the border wall that Congress has already appropriated by law.

Paoletta explained in his testimony to the committee for the hearing:

In contrast, President Biden’s hold is designed to thwart a lawfully enacted Congressional appropriation to build a border wall. Under GAO’s interpretation, this is clearly illegal. President Biden stated during the campaign that, if elected, “there will not be another foot of wall constructed in my administration.” But Congress appropriated $1.4 billion last year specifically for the construction of the border wall. Nevertheless, on his first day in office, President Biden issued an Executive Order ordering the holding of all funds, and stating that building the wall was “not a serious policy solution . . . and a waste of money.” Reports are that all funds are being held and construction has stopped.

The White House Press Secretary stated in February that the President “took formal steps to follow up on his Executive Order to end the declaration so that no more American tax dollars could be wasted on a border wall that does nothing to address or reform issues in our immigration system.” In fact, in President Biden’s FY22 “Discretionary Request,” President Biden proposes to rescind the very wall money that he is currently holding. President Biden has not sent up any deferral or rescission special message to Congress, as required by the ICA. It appears that the Administration is now intentionally under-executing congressionally appropriated funding in order to later rescind it.

Smucker said during the hearing the migrant crisis that arose less than 100 days into Biden’s administration partly came from Biden’s freezing of border wall funding.

“This is a real crisis that we’re dealing with as a result of what I think is an illegal action by the president, freezing the congressionally appropriated funds, funding for the construction on the southern border wall,” Smucker said.