Congress has appropriated funds to the Department of Homeland Security (DHS) specifically for constructing fencing or barrier system at the southern border of the United States, commonly referred to as the border wall. On January 20, 2021, the President issued a Proclamation directing a pause in the construction of the border wall and a pause in obligation of funds for the wall.
DHS has almost fully obligated funds appropriated in previous fiscal years for border fence or barrier construction projects, and suspended work on some projects. DHS has not yet obligated funds appropriated in fiscal year 2021.
The Government Accountability Office concludes that delays in the obligation and expenditure of DHS’s appropriations are programmatic delays, not impoundments. DHS and the Office of Management and Budget (OMB) have shown that the use of funds is delayed in order to perform environmental reviews and consult with various stakeholders, as required by law, and determine project funding needs in light of changes that warrant using funds differently than initially planned. Because the delay here is precipitated by legal requirements, the delay is distinguishable from the withholding of Ukraine security assistance funds.
In order to facilitate Congress’s oversight of executive spending and its Constitutional power of the purse, the congressional oversight and appropriations committees should consider requiring OMB and DHS to submit a timeline detailing the planned uses and timeframes for obligating DHS’s fiscal year 2021 appropriation. A detailed timeline could serve as a tool for rigorous oversight to ensure the President does not substitute his own policies and priorities in place of those established through the legislative process.