DHS Border Barrier Funding Developments: FY2021-FY2024

DHS Border Barrier Funding Developments: FY2021-FY2024

DHS Border Barrier Funding Developments:
March 20, 2024
FY2021-FY2024
William L. Painter
Appropriations law states that when budget authority is provided for a given purpose, the
Specialist in Homeland
Administration must use it for that purpose. This can present a challenge when a new
Security and
administration’s priorities deviate significantly from its predecessor, especially as it pertains to
Appropriations
major procurement and construction investments. The policy transition on border security

infrastructure in the early 2020s is an example of how this can play out.

The Donald J. Trump Administration came into office using campaign rhetoric of a “big beautiful
wall” on the U.S.-Mexico border as a hallmark of his immigration policy. The Joseph R. Biden Administration came into
office using contrasting campaign rhetoric of “not one more mile” of border barrier construction as part of a change in
approach.
However, when the Biden Administration came into office in January 2021, the rhetoric of the campaign met the reality of
the development process for border infrastructure. This process had taken unprecedented turns under the Trump
Administration, but was incomplete, with key priorities unmet, and more than a billion dollars of unobligated budget
authority specifically appropriated by Congress for construction of border barriers.
On its first day in office, the Biden Administration announced Department of Defense and military construction funding
would no longer be redirected to construction of border walls. New obligations would be paused until a plan was developed
to address incomplete projects and to reprioritize the work on existing infrastructure, since the redirected funds were no
longer available.
DOD proceeded with cancellation of its projects and turning over the infrastructure it had developed to DHS for completion,
operation, and maintenance. DHS proceeded with two emergency projects in the San Diego and Rio Grande Valley Sectors
while the Administration developed its plan for how to proceed more broadly.
The Biden Administration sought rescission of the unobligated DHS appropriations in FY2022, to no avail, and likewise was
turned down by Congress when it sought additional flexibility in use of unobligated funds through appropriations language in
FY2023.
DHS released an initial plan for use of its border barrier funding in June 2021. This involved major changes to planned
border barrier improvements, which precipitated a reassessment of the associated contracts. Most contracts signed by the
previous administration were cancelled, and DHS proceeded with environmental planning and stakeholder engagement for a
new slate of remediation and wall system completion projects. The Biden Administration revised its border barrier plan in
July 2022, providing more details on how it would proceed with reprioritizing available funds.
In June 2023, the Biden Administration announced plans to move ahead with an additional 20 miles of new border barrier
construction in the Rio Grande Valley Sector, and in October 2023, DHS exercised special waiver authorities to expedite its
construction.
This report describes how the Biden Administration has sought to make changes in policy regarding border barriers, with a
particular focus on how the existing appropriations for construction of those barriers have affected that process.
The legal and administrative handling of the border wall project by the two administrations can serve as a case study to
highlight the power of appropriations law and practice, if properly overseen, and the limitations that a new administration
may face in trying to influence ongoing programs set in place by a prior administration and Congress.
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Contents
Introduction ..................................................................................................................................... 1
Background ............................................................................................................................... 1
Border Wall and Funding Status at Inauguration ............................................................................ 3
January 20, 2021, Proclamation ...................................................................................................... 5
Immediate Effect ....................................................................................................................... 6
Biden Administration Pre-Plan Actions .................................................................................... 6
Biden Border Wall Funding Plans ................................................................................................... 7
Initial Plan ................................................................................................................................. 7
The Plan for DHS Appropriations ....................................................................................... 8
The Plan for Other Funding ................................................................................................ 9
Administration Plan Implementation ........................................................................................ 9
Plan Amendment ..................................................................................................................... 10
Further Implementation ........................................................................................................... 10
Congressional Action on Border Barrier Funding ......................................................................... 12
Obligation Pause Challenged .................................................................................................. 12
Selected Legislative Actions ................................................................................................... 13
Secure the Border Act of 2023 (H.R. 2, 118th Congress) .................................................. 13
House and Senate Appropriations Action ......................................................................... 14
Senate Bipartisan Border Proposal (S.Amdt. 1386, 118th Congress) ................................ 15
Considerations for Congress.......................................................................................................... 16
The Power of Appropriations .................................................................................................. 16
Information for Oversight ................................................................................................. 17
Enforcement ...................................................................................................................... 17

Figures

Figure A-1. Border Patrol Sectors on the U.S. Mexico Border ..................................................... 19

Tables
Table 1. Completion Status for Selected USACE Construction Contracts, as of January
2021 .............................................................................................................................................. 3
Table 2. Obligation of Border Barrier Funding as of January 20, 2021 .......................................... 4

Appendixes
Appendix. Map of Border Patrol Sectors on the U.S-Mexico Border ........................................... 19

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Contacts
Author Information ........................................................................................................................ 19

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Introduction
Appropriations law establishes that appropriations made by Congress “shall be applied only to the
objects for which the appropriations were made except as otherwise provided by law” (31 U.S.C.
§1301(a), commonly referred to as the Purpose Statute).1 Congress also exerts control over
appropriated funds by limiting the ability of agencies to reallocate funds both within an account
(reprogramming) and between accounts (transfers).2 These limitations on agencies can present a
challenge for a new Administration when major investments by their predecessor, funded by
Congress, are contrary to their policy approach.
The Donald J. Trump Administration came into office using campaign rhetoric of a “big beautiful
wall” on the U.S.-Mexico border as a hallmark of his immigration policy. The Joseph R. Biden
Administration came into office using contrasting campaign rhetoric of “not one more mile” of
border barrier construction to signal a change in approach.
However, when the Biden Administration came into office in January 2021, the rhetorical
position of no further construction of border walls met the reality of the development process for
border infrastructure. This process had taken unprecedented turns under the Trump
Administration, but was incomplete, with key priorities unmet, and more than a billion dollars of
unobligated budget authority specifically appropriated by Congress for construction of border
barriers.
Background
On January 25, 2017, the Trump Administration issued Executive Order (EO) 13767, “Border
Security and Immigration Enforcement Improvements.” Section 2(a) of the EO indicated that it
was the policy of the executive branch to “secure the southern border of the United States through
the immediate construction of a physical wall on the southern border, monitored and supported by
adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of
terrorism.”3
President Trump pursued historically large amounts of appropriations for border wall
construction, requesting $8.3 billion from FY2017 to FY2019. Congress provided $3.1 billion
over those three fiscal years. On February 15, 2019, President Trump declared a national
emergency on the southern border of the United States. A fact sheet accompanying the declaration
indicated the President’s intent to make additional funding available for border barriers beyond
congressional appropriations to DHS, primarily through redirecting Department of Defense
(DOD) funds appropriated for other purposes using a combination of existing counterdrug,
national emergency, and transfer authorities. By the end of his term, President Trump had
received $5.84 billion in appropriations through DHS for border barrier construction, but had
diverted more than $10.6 billion to border barrier construction, almost $10.1 billion of which was
from DOD sources. These diversions provoked controversy and were challenged in court.
For a fuller discussion of barriers on the U.S.-Mexico border, see the following:

1 For more on the Purpose Statute, see CRS Report R46417, Congress’s Power Over Appropriations: Constitutional
and Statutory Provisions, by Sean M. Stiff.
2 For more on transfers and reprogrammings, see CRS Report R47600, Transfer and Reprogramming of
Appropriations: An Overview, by Taylor N. Riccard and Dominick A. Fiorentino.
3 Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” 82 Federal Register 8793,
January 30, 2017.
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• CRS Report R45888, DHS Border Barrier Funding Through FY2021, by William
L. Painter and Audrey Singer;
• CRS Report R46002, Military Funding for Border Barriers: Catalogue of
Interagency Decisionmaking, by Christopher T. Mann and Sofia Plagakis;
• CRS Legal Sidebar LSB11059, Barriers Along the U.S. Border: Key Authorities
and Recent Developments, by Michael John Garcia and Sean M. Stiff; and
• CRS In Focus IF11224, Army Corps of Engineers and U.S. Southern Border
Barriers, by Nicole T. Carter.
For a clearer understanding of the border sectors referenced in this report, a map of the sectors
and key locations is included as an Appendix.

How to Follow the Money
Understanding the interplay of policymaking and appropriations requires an understanding of how the federal
government spends money.
Article I, Section 9, Clause 7 of the U.S. Constitution says: “No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law.”
An enacted appropriations measure provides budget authority (the authority to enter into financial obligations)
to the executive branch and direction on how it is (or is not) to be used.
That budget authority is not provided directly to the executive branch agencies or departments all at once. It is
distributed to them for use by the Office of Management and Budget (OMB) by a process known as
apportionment.
Once budget authority is apportioned to an agency, it is available for obligation—which takes place when an
agency enters into a legal obligation to pay for something—a grant, a battleship, a contract for services, etc.
Budget authority provided through appropriations measures are only available for obligation in the fiscal year for
which it is provided, unless specified otherwise for certain accounts. Congress may specify that budget authority
for certain accounts or activities are available for obligation for a longer period of availability, such as multiple
fiscal years (multi-year availability) or indefinitely (no-year or “x”-year availability). Within DHS, the period of
availability for appropriations accounts has varied:
Operations and Support—available for one to two fiscal years;
Procurement Construction and Improvement appropriations—available for three to five years;
Federal Assistance—available for one year;
Research and Development—available for two years.
Once obligated, the budget authority is available to make payments from the Treasury (called outlays or
expenditures). Obligated budget authority can be de-obligated if the funds are no longer required, such as
when a contract is cancelled. Such de-obligated funds can be re-obligated over their original period of availability.
If budget authority remains unobligated past its term of availability, it expires, and is no longer available for new
obligations. Five years after an appropriation’s period of availability for obligation ends, the account is closed and
the budget authority is no longer available for obligation or expenditure.
The Government Accountability Office (GAO) points out that
When Congress enacts appropriations, it has provided budget authority that agencies must obligate in a
manner consistent with law. The Constitution vests lawmaking power with the Congress.... The President
and officers in an Administration of course may consider their own policy objectives as they craft policy
proposals for inclusion in the President’s budget submission.… However, once enacted, the President must
“take care that the laws be faithful y executed.”… Enacted statutes, and not the President’s policy priorities,
necessarily provide the animating framework for all actions agencies take to carry out government programs.4

4 U.S. Government Accountability Office, Office of Management and Budget—Withholding of Ukraine Security
Assistance, B-331564, January 16, 2020, p. 6, https://www.gao.gov/products/b-331564.
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Therefore, when the Administration receives an appropriation for a particular purpose outlined in statute, it is
required to make a good-faith effort to responsibly execute the funded task with that appropriation, obligating the
funds within their period of availability, or seeking to have that budget authority rescinded, or cancelled.5
For more on this topic, see CRS In Focus IF12329, Expiration and Cancellation of Unobligated Funds, by Taylor N.
Riccard.

Border Wall and Funding Status at Inauguration
The Trump Administration used the appropriated and redirected funding to construct border
barriers in multiple places, often replacing existing vehicle barriers and older pedestrian barriers.
When the Trump Administration left office, U.S. Customs and Border Protection (CBP) and the
U.S. Army Corps of Engineers (USACE) reported that “[about] 403 miles of new primary and
[about] 55 miles of new secondary border wall system” had been constructed since January 2017,
including 52 miles of “new primary wall” where no barriers had previously existed.6
However, the Government Accountability Office (GAO) noted later that year that this was not the
case. GAO noted a distinction between the construction of border barriers (placement of wall
panels) and the completion of border wall system, which would include the requisite sensors,
lighting, and roads. GAO agreed that roughly 458 miles of wall panels had been installed, mostly
using DOD counterdrug and military construction funding, but also stated that only 69 miles of
contracted border wall system was completed. Table 1 provides GAO’s breakdown of border wall
contracts, mileage, and funding by budget source.
Table 1. Completion Status for Selected USACE Construction Contracts, as of
January 2021
Miles of
Wall
Wall
System
System
Wall Panels
Complete
Funding
Contracts
Under
Complete
(contract
Funds
Funds
Source
Awarded
Contract
(miles)
complete)
Obligated
Disbursed
DOD
7
295
258
0
$6.3 bil ion
$4.0 bil ion
Counterdrug
DOD
6
96
87
0
$1.2 bil ion
$0.9 bil ion
Military
Construction
DHS
18
240
112
69
$3.0 bil ion
$1.8 bil ion
Total
31
631 miles
458 miles
69 miles
$10.5 billion
$6.6 billion

5 However, the requirement does not mean all the available budget authority must be obligated. GAO notes that “Under
sound administrative funds control practices, agencies may obligate cautiously in order to cover unanticipated
liabilities. Viewed another way, agencies obligating 100 percent of their available funds leave little to no room for
obligations to be adjusted upward, and if unforeseen costs arise, those agencies run the risk of exceeding amounts
available and violating the Antideficiency Act.” (U.S. Government Accountability Office, Department of Commerce—
Application of the Impoundment Control Act to Appropriations Enacted in Fiscal Years 2018 and 2019, B-331298,
December 23, 2020, p. 10, https://www.gao.gov/assets/b-331298.pdf.)
6 U.S. Customs and Border Protection, U.S. Army Corps of Engineers, “Border Wall Status—January 22, 2021,” fact
sheet, https://www.crs.gov/Products/Documents/CBPBorderWall01222021/pdf/CBPBorderWall01222021.pdf.
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Source: GAO-21-372, p. 34, citing U.S. Army Corps of Engineers documentation and Federal Procurement
Data System data.
Notes: Numbers do not sum due to rounding.
a. This includes 31 of the 39 contracts GAO reviewed. Six of the remaining contracts were exclusively for
roads or gates, so do not count toward the total miles of border wall constructed. The two remaining
contracts were terminated shortly after award.
GAO went on to note this about the status of construction activity as of January, 2021:
All 13 DOD-funded contracts were expected to complete at least some wall panels by the
end of 2020. Prior to the direction to pause work, 12 of these contracts were expected to be
finished by the end of fiscal year 2021—i.e., the wall system was expected to be completed
for most of the 391 miles awarded. While seven of the 18 contracts for border wall
construction that were funded by DHS appropriations were completed, the completion
timelines and construction status for the remaining DHS-funded contracts varied. Several
were pushed back until fiscal year 2022 or suspended prior to the direction to pause work,
and the completion status of the remaining miles is uncertain. According to CBP officials,
these suspensions were related to difficulties they experienced in certifying real estate
availability, which led USACE to pause construction activities, although design activities
continued until the work stoppage.7
Table 2 shows that roughly two-thirds of the funding identified for border barrier construction
under the Trump Administration had been obligated. This included budget authority appropriated
to CBP, transferred from the Treasury Forfeiture Fund, redirected within DOD, and repurposed
from military construction projects to border barrier construction.
Table 2. Obligation of Border Barrier Funding as of January 20, 2021
Fiscal Year
Budget Authority
Obligated
Department of Homeland Security
Appropriated to CBP

FY2017
$341 mil ion
$341 mil ion (est.)a
FY2018
$1,375 mil ion
$1,306 mil ion (est.)b
FY2019
$1,375 million
$1,348 mil ion (est.)b
FY2020
$1,375 mil ion
$1,320 mil ion (est.)b
FY2021
$1,375 mil ion
$0
Treasury Forfeiture Fund
Transferred to DHS

FY2019
$601 mil ion
$146 mil ion
Department of Defense
Reprogrammed and

Counterdrug Program
transferred to USACE
FY2019
$2,629 mil ion
$2,560 mil ion
FY2020
$3,831 mil ion
$3,776 mil ion
Military Construction under
Deferred from other Military

Emergency Authority
Construction projects
FY2019
$3,600 mil ion
$1,515 mil ion
Source: CRS analysis of FY2019 and FY2020 DOD reprogramming actions for “Support of DHS Counter-Drug
Activity”; U.S. Government Accountability Office, Office of Management and Budget and U.S. Department of

7 U.S. Government Accountability Office, Southwest Border: Schedule Considerations Drove Army Corps of
Engineers’ Approaches to Awarding Construction Contracts Through 2020, GAO-21-372, June 17, 2021, p. 34,
https://www.gao.gov/products/gao-21-372.
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Homeland Security—Pause of Border Barrier Construction and Obligations, B-333110, June 15, 2021; and USACE,
“Status of Funds for Southwest Border Requirements,” as of January 20-22, 2021. Documents available upon
request.
Notes:
a. While neither CBP nor GAO indicated in their reporting a precise amount of FY2017 obligations, CBP
noted in their border barrier updates that the specific projects funded by the FY2017 appropriations had
been completed. Any remaining budget authority in this appropriation ceased to be available for new
obligations after September 30, 2021.
b. GAO did not provide a precise breakdown of obligations in B-333110, but instead provided a percentage of
funds obligated, converted here for ease of comparison.
January 20, 2021, Proclamation
On January 20, 2021, President Joseph R. Biden issued a proclamation that represented the first
step of implementing his own border security and immigration policies. The proclamation did
several things:
1. It terminated the Trump Administration’s national emergency with respect to
the southern border that had been declared in February 2019.
2. It indicated the President’s opposition to diverting DOD resources to border wall
construction in the current circumstance and stated that emergency military
construction and DOD authorities would no longer be used for border wall
construction.
3. It paused work on construction projects on the border wall, to the extent
permitted by law, for the stated purpose of:
a. assessment of the funding and contracting methods used to construct the
wall;
b. assessment of the administrative and contractual consequences of ceasing
each project; and
c. completion and implementation of a plan for redirecting funding and
repurposing construction contracts.
4. It paused further obligation of funds related to the construction of the southern
border wall, to the extent permitted by law.
5. It directed DOD and DHS to compile detailed information on all southern
border wall construction contracts, projects, and funding undertaken since the
declaration of the border emergency.8
Under the terms of the proclamation, the Secretary of Defense and the Secretary of Homeland
Security, in consultation with a range of executive departments and agencies, were to
develop a plan for redirection of funds concerning the southern border wall, as appropriate
and consistent with applicable law. The process of developing the plan shall include
consideration of terminating or repurposing contracts with private contractors engaged in
wall construction, while providing for the expenditure of any funds that the Congress
expressly appropriated for wall construction, consistent with their appropriated purpose.9
This proclamation represented two significant departures in policy from the prior Administration:

8 Proclamation 10142, “Termination of Emergency with Respect to the Southern Border of the United States and
Redirection of Funds Diverted to Border Wall Construction,” 86 Federal Register 7225-7227, January 27, 2021.
9 Proclamation 10142, Section 2.
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• Rather than viewing the border wall as the linchpin of border security and
homeland security policy, the Biden Administration took the position that
“building a massive wall that spans the entire southern border is not a serious
policy solution. It is a waste of money that diverts attention from genuine threats
to our homeland security.”10
• Rather than redirecting funds from other purposes to construct border walls, the
Biden Administration took the position “that no more American taxpayer dollars
be diverted to construct a border wall.”11
Immediate Effect
Points 1 and 2 above were statements of policy: by canceling the national emergency that made
diversion of military construction funds possible, and ceasing to redirect funds from DOD
operational accounts, the Administration closed those funding avenues for border wall
construction.
The third and fourth points directly affected the border barrier construction process: pausing work
on existing contracts, and pausing further awarding of contracts. USACE and CBP suspended all
wall construction projects in the days after the Proclamation, with the exception of projects
related to safety,12 and new obligations stopped. Payments to fulfil existing obligations to
contractors continued.13
The fifth point directed the assembly of information to allow the assessment and planning
outlined as justifications for the pause in construction.
The proclamation directed DHS to develop a new plan for border barrier construction funding
within 60 days, after which the Secretary of Defense and the Secretary of Homeland Security
were to “take all appropriate steps to resume, modify, or terminate projects and to otherwise
implement the plan.”
Biden Administration Pre-Plan Actions
On April 9, 2021, in a letter to the bipartisan leadership of the House and Senate Appropriations
and Budget committees, respectively, the Biden Administration released its request for FY2022
discretionary funding. While not a formal budget submission (which would ultimately come on
May 28, 2021), it outlined a number of budgetary proposals and policy priorities of the new
Administration. The Administration indicated that they sought no further funding for border wall
construction in FY2022, and sought the rescission, or cancellation, of prior-year balances of all
such funding that remained unobligated at the end of FY2021.14

10 Proclamation 10142, preamble.
11 Proclamation 10142, preamble.
12 U.S. Customs and Border Protection, U.S. Army Corps of Engineers, “Border Wall Status—January 22, 2021,” fact
sheet.
13 U.S. Department of Homeland Security, Department of Homeland Security Border Wall Plan Pursuant to
Presidential Proclamation 10142, June 9, 2021, (hereinafter “June 2021 Plan”), p. 2, fn. 1, https://www.dhs.gov/sites/
default/files/publications/21_0611_dhs_security_border_wall_plan.pdf; and U.S. Government Accountability Office,
Office of Management and Budget and U.S. Department of Homeland Security—Pause of Border Barrier Construction
and Obligations, B-333110, June 15, 2021 (hereinafter “B-333110”), p. 10, https://www.gao.gov/products/b-333110-0.
14 Letter from Shalanda D. Young, Acting Director, Office of Management and Budget, to the Honorable Patrick
Leahy, Chairman, U.S. Senate Committee on Appropriations, April 9, 2021, Enclosure 2, “2022 Discretionary Request
Summaries for Major Agencies,” p. 15, https://www.whitehouse.gov/omb/legislative/fy-2022-discretionary-request/.
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On April 30, 2021, DHS announced two border barrier projects that would proceed in spite of the
pause, under an exception in the proclamation “for urgent measures needed to avert immediate
physical dangers.”15 One was a project to repair 13 miles of the levee system near Hidalgo
County, TX, in the Rio Grande Valley Sector, which had been degraded by an incomplete border
barrier construction project; and the other was remediation of a 14-mile stretch of soil erosion
related to border barrier and road construction in San Diego. The Administration indicated at the
time that neither project would “involve expanding the border barrier.”16
The same day, DOD announced it would cancel “all border barrier construction projects paid for
with funds originally intended for other military missions and functions.”17 Internal DOD
documents (later included in Supreme Court records) indicated that the transferred DOD
counterdrug funding had expired at the end of the fiscal year in which it had been provided, and
would no longer be available for obligation.18 In contrast, $2.1 billion associated with four
unawarded contracts (to be paid for with redirected military construction funds) could be released
back to relevant DOD components.19
Biden Border Wall Funding Plans
Initial Plan
On June 11, 2021, the Biden Administration released its plan for further use of border wall
funding.20
The plan indicated that DOD and DHS had indeed paused work on all border barrier construction,
“with the exception of activities related to ensuring project sites are safe and secure in accordance
with the terms and conditions of the contracts,” and had not made additional obligations.
DHS had continued to pay invoices under existing contracts in the interim and, in contrast to
DOD, had not deobligated any funding, or cancelled contracts at that point.21

15 Proclamation 10142, Section 1(b).
16 U.S. Department of Homeland Security, “DHS Announces Steps to Protect Border Communities from Wall
Construction,” press release, April 30, 2021, https://www.dhs.gov/news/2021/04/30/dhs-announces-steps-protect-
border-communities-wall-construction.
17 U.S. Department of Defense, “DOD Release Regarding Cancellation of Border Barrier Project Cancellation”[sic],
press release, April 30, 2021, https://www.defense.gov/News/Releases/Release/Article/2591993/dod-release-regarding-
cancellation-of-border-barrier-project-cancellation/.
18 Robert G. Salesses, Performing the Duties of the Assistant Secretary of Defense (Homeland Defense and Global
Security), Memorandum to the Deputy Secretary of Defense, “Subject: Department of Defense Actions Implementing
Presidential Proclamation 10142,” April 27, 2021, https://www.supremecourt.gov/DocketPDF/20/20-
138/177066/20210430165643828_20-138%20USA%20Letter%20Update%20Enclosure.pdf. Hereinafter “Salesses
memo.” A DOD information paper attached to the memorandum as Tab E further noted that USACE estimated that
$624 million would be expended to pay outstanding contract claims and termination costs, and $415 million would be
paid for suspension costs, although they noted these amounts were subject to negotiations with contractors. See Tab E.
19 Salesses memo, Tab E. The information paper included as Tab E further noted that USACE estimated $261 million
in deobligations would be made from awarded contracts, $180 million would pay for termination costs, and $160
million would pay for suspension costs, although they noted these amounts were subject to negotiations with
contractors.
20 Office of Management and Budget, “FACT SHEET: Department of Defense and Department of Homeland Security
Plans for Border Wall Funds,” June 11, 2021, https://www.whitehouse.gov/omb/briefing-room/2021/06/11/fact-sheet-
department-of-defense-and-department-of-homeland-security-plans-for-border-wall-funds/.
21 June 2021 Plan, p. 1. Contract suspension and cancellation can result in the government covering certain costs
incurred by the contractor.
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IIRIRA Waivers for Border Barrier Construction
One of the perceived challenges to quick action on federal procurement and construction is the requirement for
public engagement and review under a variety of laws.
In 2005, through Section 102 of the REAL ID Act of 2005 (P.L. 109-13, Div. B), Congress amended Section 102 of
the Il egal Immigration Reform and Immigrant Responsibility Act (IIRIRA), allowing the Secretary of DHS to waive
“all legal requirements” that might impede the construction of border barriers and roads.
Such a waiver is not required, but it can be exercised at the Secretary’s “sole discretion” if the Secretary
determines that it is “necessary to secure expeditious construction.”22 Before the Biden Administration, the
authority was exercised five times under President George W. Bush, and 27 times by the Trump Administration,
covering more than 900 miles, by some calculations.23
In its June 2021 plan, the Biden Administration stated a desire to engage in the traditional processes for
environmental planning and public engagement for border barrier construction, but has continued work under
some existing waivers, and exercised the authority for a new project in October 2023, as discussed below.
For more information on legal authorities for border barrier construction, including the waiver authority, see CRS
Legal Sidebar LSB11059, Barriers Along the U.S. Border: Key Authorities and Recent Developments, by Michael John
Garcia and Sean M. Stiff.
The Plan for DHS Appropriations
The excepted emergency projects in the Rio Grande Valley and San Diego (noted above) would
proceed under previously existing waivers for environmental review, given their urgency.
Going forward, the Biden Administration’s June 2021 plan noted that before further construction
on border wall projects funded by pre-FY2021 DHS appropriations, DHS would “undertake a
thorough review and replanning process,” including:
• regardless of the existence of IIRIRA waivers, engaging in standard
environmental planning processes for continuing projects, to include public
scoping and comment, except in cases of projects needed to address life, safety,
environmental, or other remediation requirements;
• substantively consulting with stakeholders in the public and private sector as part
of the environmental planning of projects and their execution; and
• reviewing all border wall land eminent domain actions begun between 2016 and
2020, and reassessing their necessity based on the environmental planning
activities.24
The plan indicated that FY2021 border barrier construction appropriations would be used to
complete and remediate border wall projects that would be turned over by DOD to DHS, as well
as for cost overruns on the Rio Grande Valley emergency levee repair project. Any funds not
required for such purposes would then be used for the next highest priority barrier segments
identified by DHS, initially prioritizing projects required for life, safety, environmental, or other
remediation requirements. Those projects would begin with a National Environmental Policy Act
(NEPA)-compliant planning process.

22 8 U.S.C. §1103 note.
23 Kenneth D. Madsen, “Institutionalising the Exception: Homeland Security Section 102(c) Waivers and the
Construction of Border Barriers,” Geopolitics, 2023, vol. 28, iss. 5, pp. 1783-1806, https://www.tandfonline.com/doi/
full/10.1080/14650045.2022.2126766.
24 June 2021 Plan, pp. 2-3. The plan also discusses modifying plans to reduce the use of land acquired through adverse
eminent domain proceedings, possible revestment of unneeded land already acquired, and use of condemnation as a last
resort.
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At various points, the plan noted that DHS was exploring use of appropriated funds to address
issues with construction carried out with redirected funds, including remediation. The plan noted
that “The specific amount of funding required will depend upon the condition of the DOD
projects and the amount of work DHS can undertake.” The DHS plan thus implied that the
transfer of the DOD projects had yet to take place.25
The Plan for Other Funding
According to the plan, $146 million of the $601 million transferred from the Treasury Forfeiture
Fund (TFF) in FY2019 had been obligated.
Under the plan, DHS would end border wall construction funded by TFF resources, and terminate
the contracts, once tasks to protect life, safety, and the environment were completed.
Unobligated balances of $455 million were returned to the TFF to fund other law enforcement
purposes, as it had originally been intended. Any funds deobligated after project cancellation
would also be returned to the TFF.
The Fate of DOD Border Wall Funding
Most of the DOD funding redirected to border barrier construction under counterdrug authorities had already
been obligated and expended—less than $130 mil ion of the $6.46 bil ion directed through those channels
remained unobligated when the Biden Administration took office, and more than two-thirds of the obligated
resources had been expended. However, of the $3.6 bil ion in redirected military construction funds, only $1.5
bil ion had been obligated and less than two-thirds of the obligated amount had been expended.
The day the Administration released its plan for the use of DHS border barrier funding, it restated its policy,
saying that “no more money wil be diverted for the purposes of building a border wall,” and noting that DOD had
begun the process of canceling all border barrier projects using the diverted funds. It also announced that more
than $2 bil ion in unobligated diverted military construction funding was being returned to meet its original
purposes.
Administration Plan Implementation
Announcements of contract actions resulting from the “review and replanning” outlined by the
administration began in July 2021. That month, two CBP projects in the Laredo Sector were
canceled,26 and DHS authorized CBP to complete projects to address life, safety, environmental,
and other remediation requirements in the El Centro, Rio Grande Valley, and San Diego Sectors.27
In October 2021, CBP announced it would cancel all other border barrier contracts in the Laredo
and Rio Grande Valley Sectors, and begin environmental planning activities for border barrier
system projects in the Rio Grande Valley, Laredo, and El Centro Sectors.28
CBP continued to undertake more activities to address life, safety, environmental, and other
remediation requirements across seven sectors in the following months. Before the plan was a

25 June 2021 Plan, p. 4.
26 DHS, “DHS to Cancel Laredo Sector Border Barrier Contracts,” press release, July 23, 2021, https://www.dhs.gov/
news/2021/07/23/dhs-cancel-laredo-sector-border-barrier-contracts.
27 DHS, “DHS to Address Life, Safety, Environmental, and Operational Considerations for Specific Border Barrier
Projects,” press release, July 27, 2021, https://www.dhs.gov/news/2021/07/27/dhs-address-life-safety-environmental-
and-operational-considerations-specific-border.
28 DHS, “DHS to Terminate Border Barrier Contracts in Laredo and Rio Grande Valley,” press release, October 8,
2021, https://www.dhs.gov/news/2021/10/08/dhs-terminate-border-barrier-contracts-laredo-and-rio-grande-valley.
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year old, 20 projects had been approved, including six projects to remediate border barrier
projects undertaken with DOD counterdrug funding.29
Plan Amendment
On July 11, 2022, DHS announced an amendment to the June 2021 plan,30 providing more
specifics as to the uses of available funds by fiscal year:
Since the release of the Plan, and through that continued assessment, DHS has found that
the remediation and mitigation requirements from past barrier construction are more
substantial than anticipated and can be addressed through the lawful expenditure of DHS
funds. Additionally, DHS has determined that the installation of barrier system attributes,
which may include, as appropriate to each location, lighting, cameras, and detection
technology, in areas where physical barrier has already been constructed, is consistent with
the purpose of the FY18-2021 appropriations, will enhance the functionality of previously
constructed barrier and can be implemented in a manner that is consistent with the planning
criteria and other principles of the Plan.31
In its amendment, DHS took note of the specific purpose for each appropriation, stating that it
would:
• Use FY2018 and FY2019 appropriations, which had been specifically directed to
primary pedestrian fencing in the Rio Grande Valley Sector, “to address
remediation and mitigation requirements from past barrier construction” and
“complete the installation of barrier system attributes, which may include, as
appropriate to each location, lighting, cameras, and detection technologies, in the
areas where physical barrier was constructed previously with FY18 and FY19
appropriations.”32
• Use DHS border barrier system funding from FY2020 and FY2021, which was
more broadly directed to “construction of barrier system along the southwest
border” to (1) “close out,” remediate, or mitigate in areas where DOD border
construction had taken place, and (2) to install border wall system attributes, like
lighting, cameras, and detection technology, in places where barrier panels had
already been placed.33
Further Implementation
Under the revised plan, DHS has continued activities to close and remediate issues with border
barrier projects funded with redirected military construction funds. In announcing some of these
projects in December 2022, DHS noted:

29 Information on CBP environmental management and recent projects can be found at https://www.cbp.gov/about/
environmental-management. For more information on environmental planning under the National Environmental
Policy Act (NEPA), see CRS In Focus IF12560, National Environmental Policy Act: An Overview, by Kristen Hite.
30 DHS, “DHS Update on Border Wall Remediation Efforts,” press release, July 11, 2022, https://www.dhs.gov/news/
2022/07/11/dhs-update-border-wall-remediation-efforts.
31 DHS, Amendment to DHS Border Wall Plan Pursuant io Presidential Proclamation 10142, July 11, 2022
(hereinafter, “Amendment”), p. 1, https://www.dhs.gov/sites/default/files/2022-07/
22_0711_dhs_security_border_wall_plan_amendment.pdf.
32 Amendment, pp. 1-2. Because of the directive language associated with the appropriations, all of these projects must
be within the Rio Grande Valley Sector.
33 Amendment, pp. 2-3.
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While the U.S. Army Corps of Engineers ensured that DoD contractors made their work
sites safe, if left incomplete or unaddressed, conditions at these locations create potential
safety risks to CBP personnel and surrounding communities and pose a potential risk of
flooding and property damage to communities and landowners. They also create a risk of
environmental degradation related to lack of proper grading, erosion control measures, and
slope stabilization.34
Some projects were approved to support Border Patrol operations, in addition to the life, safety,
environmental, or other remediation requirements prioritized under the initial plan. These either
close gaps in incomplete projects,35 or build additional miles of border wall system.
On June 30, 2023, DHS had announced plans to move ahead with planning and execution of up to
20 miles of border barrier system in Starr County, TX, in the Rio Grande Valley sector, using
FY2019 appropriations.36 Public comment on the project was open for a month, closing on
September 15, 2023.37 The contract was awarded September 28, 2023, two days before the
unobligated balances of that appropriation would expire. On October 5, 2023, DHS announced
that it would exercise its waiver authority under Section 102(c) of the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA)38 to expedite that construction project—the first time
the Secretary had exercised that authority.
In the Secretary’s determination, published in the Federal Register, he noted the following:
The United States Border Patrol’s (Border Patrol) Rio Grande Valley Sector is an area of
“high illegal entry.” As of early August 2023, Border Patrol had encountered over 245,000
such entrants attempting to enter the United States between ports of entry in the Rio Grande
Valley Sector in Fiscal Year 2023.
Therefore, I must use my authority under section 102 of IIRIRA to install additional
physical barriers and roads in the Rio Grande Valley Sector. Therefore, DHS will take
immediate action to construct barriers and roads. Construction will be funded by a fiscal
year 2019 appropriation through which Congress appropriated funds for the construction
border barrier in the Rio Grande Valley, and DHS is required to use those funds for their
appropriated purpose. This project is consistent with DHS’s plan to fulfill the requirements
of President Biden’s Proclamation (Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 20,
2021)), which ended the diversion of funds for border wall from military projects or other
sources while calling for the expenditure of any funds Congress appropriated for barrier
construction consistent with their appropriated purpose.39

34 DHS, “DHS to Address Life, Safety, Environmental, and Remediation Requirements for Border Barrier Projects in
San Diego, Yuma, El Paso,” press release, December 13, 2022, https://www.dhs.gov/news/2022/12/13/dhs-address-
life-safety-environmental-and-remediation-requirements-border-barrier.
35 DHS, “DHS to Address Life, Safety, and Operational Requirements in the U.S. Border Patrol’s Yuma Sector,” press
release, July 28, 2022, https://www.dhs.gov/news/2022/07/28/dhs-address-life-safety-and-operational-requirements-us-
border-patrols-yuma-sector; and see, for example, https://www.cbp.gov/document/environmental-assessments/morelos-
dam-border-barrier.
36 CBP, “CBP Moves Forward on RGV Barrier and Yuma Andrade and El Centro Calexico Fence Replacement
Projects to Mitigate Immediate Life, Safety and Operational Risks,” press release, June 30, 2023, https://www.cbp.gov/
newsroom/local-media-release/cbp-moves-forward-rgv-barrier-and-yuma-andrade-and-el-centro-calexico. The press
release indicated that the unobligated balance of FY2019 border barrier appropriations was estimated to be “$190
million” as of that date. This would appear to reflect deobligations of FY2019 border barrier appropriations when
contracts were canceled as announced in October 2021.
37 CBP, Starr County Border Barrier Stakeholder Feedback Report, October 30, 2023, p. 3, https://www.cbp.gov/
document/environmental-assessments/rio-grande-valley-border-barrier-environmental-planning.
38 8 U.S.C. §1103 note.
39 U.S. Department of Homeland Security, Office of the Secretary, “Determination Pursuant to Section 102 of the
(continued...)
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DHS had indicated in its June 2020 plan for use of border wall system appropriations, that
For all activities or projects that will continue, with the exception of the projects and
activities [for emergencies specified in the Plan] or projects necessary to address life,
safety, environmental, or other remediation requirements, regardless of whether an
applicable IIRIRA waiver is rescinded or revised, DHS intends to engage in standard
environmental planning including taking certain actions consistent with National
Environmental Policy Act (NEPA) and other environmental planning and statutes. DHS
intends to undertake a multistep environmental planning process, which will include public
scoping and comment on potential environmental impacts through the NEPA process.40
Despite the intent outlined in the June 2021 plan, the Administration found it necessary to waive
NEPA and 25 other federal statutes to expedite the new border wall construction in Starr
County,41 and while DHS did receive public comment, given the intent to “take immediate action
to construct barriers and roads,” the environmental planning process is less deliberate than the
process for the other developing projects.
Congressional Action on Border Barrier Funding
Obligation Pause Challenged
In March and April of 2021, several Senators and Members of the House wrote the Comptroller
General asking GAO for a legal opinion on whether President Biden’s pause in border barrier
obligations and construction were illegal under the Impoundment Control Act.42
On June 15, 2021, GAO issued a decision that indicated “delays in the obligation and expenditure
of DHS’s appropriations are programmatic delays, not impoundments.”43
Almost all border barrier construction funding for FY2017-FY2020 had already been obligated,
but FY2021 funding had not. GAO noted that when the Administration chose to cease redirecting
funds within DOD to construct border barriers, and restore what unexpended funds it could to its
original purposes, DHS needed to determine what its new construction priorities and funding
needs were. Furthermore, the Administration intended to proceed when it could without
exercising discretionary waivers of statutory prerequisites, such as the National Environmental
Policy Act and procurement laws, and thus had to follow a more deliberate process, similar to
other government construction and procurement efforts.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended,” 88 Federal Register 69214,
October 5, 2023.
40 June 2021 Plan, p. 2.
41 Department of Homeland Security, “Determination Pursuant to Section 102 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, as Amended,” 88 Federal Register 69214-69215, October 5, 2023.
42 B-333110, p. 3, fn. 8. As noted above in the “How to Follow the Money” text box, the Administration is required to
make a good faith effort to use the budget authority it is appropriated for the purposes it is provided for. The President
may submit a request to Congress requesting the cancellation (rescission) of certain unobligated budget authority. If
Congress does not pass legislation rescinding the requested budget authority within 45 days of the request, however,
then the President is required to make the budget authority available for obligation. Under 2 U.S.C. §684, the
Administration can only delay obligation or expenditure of funds to provide for contingencies; to achieve savings
through changes in requirements or greater efficiency; or as specifically provided by law. If the Comptroller General,
who is charged with reviewing such actions, finds the Administration has improperly withheld required funds from
obligation, the Comptroller General can take action in court to compel the availability of the budget authority for
obligation.
43 B-333110, p. 1.
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GAO distinguished this case from their previous finding of an impoundment in the case of the
Trump Administration’s handling of military assistance for Ukraine,44 noting that in the case of
the aid:
OMB did not justify the withholding of Ukraine security assistance funding by presenting
evidence of any statutory prerequisites that needed to be satisfied before funds could be
obligated. Here, delays in the obligation and expenditure of DHS’s border barrier
appropriations stem from the time required to meet applicable statutory requirements and
develop plans for the use of the funds that consider current circumstances.45
Selected Legislative Actions
Secure the Border Act of 2023 (H.R. 2, 118th Congress)
Sections 102 and 103 of H.R. 2, which passed the House of Representatives by a vote of 219-213
on May 11, 2023,46 would provide legislative direction to the current and future Secretaries of
Homeland Security on actions they must undertake regarding border barriers, requiring them to:
• “resume all activities related to the construction of the border wall along the
border between the United States and Mexico that were underway or being
planned for prior to January 20, 2021.”;
• “expend all unexpired funds appropriated or explicitly obligated for the
construction of the border wall that were appropriated or obligated, as the case
may be, for use beginning on October 1, 2019.”;
• Within 90 days of enactment, “submit to the appropriate congressional
committees an implementation plan, including annual benchmarks for the
construction of 200 miles of such wall and associated cost estimates for
satisfying all requirements of the construction of the border wall, including
installation and deployment of tactical infrastructure, technology, and other
elements as identified by the Department prior to January 20, 2021, through the
expenditure of funds appropriated or explicitly obligated, as the case may be, for
use, as well as any future funds appropriated or otherwise made available by
Congress.”;
• “construct a border wall, including physical barriers, tactical infrastructure, and
technology, along not fewer than 900 miles of the southwest border until
situational awareness and operational control of the southwest border is
achieved.”;
• “deploy along the southwest border the most practical and effective physical
barriers, tactical infrastructure, and technology available for achieving situational
awareness and operational control of the southwest border.”;
• “consult with the Secretary of the Interior, the Secretary of Agriculture,
appropriate representatives of State, Tribal, and local governments, and
appropriate private property owners in the United States to minimize the impact
on natural resources, commerce, and sites of historical or cultural significance for
the communities and residents located near the sites at which physical barriers,

44 U.S. Government Accountability Office, Office of Management and Budget—Withholding of Ukraine Security
Assistance, B-331564, January 16, 2020, https://www.gao.gov/products/b-331564.
45 B-333110, p. 3.
46 Roll Call #209, https://clerk.house.gov/Votes/2023209.
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tactical infrastructure, and technology are to be constructed. Such consultation
may not delay such construction for longer than seven days.”; and
• “waive all legal requirements necessary to ensure the expeditious design, testing,
construction, installation, deployment, integration, operation, and maintenance of
the physical barriers, tactical infrastructure, and technology under this section.
The Secretary shall ensure the maintenance and effectiveness of such physical
barriers, tactical infrastructure, or technology. Any such action by the Secretary
shall be effective upon publication in the Federal Register.”
In addition, the bill would remove discretion that exists in current law for the Secretary to use
their judgement as to whether installation of barriers or other infrastructure in specific areas is
appropriate. Under current law, the Secretary is not required to do so if they determine that such
action is not the most appropriate means to achieve operational control of the border.47
H.R. 2 has not been taken up by the Senate at this time.
House and Senate Appropriations Action
FY2022
The Administration proposed rescinding all unobligated DHS border barrier construction funds in
their FY2022 budget request. Several of the Administration’s communications in calendar year
2021 regarding planning for FY2022 noted that the Administration at the time was seeking the
rescission48 of the funds for those projects from Congress, but that the law required DHS to
proceed with a good faith effort to use those funds consistent with their appropriated purpose.
Ultimately, the Administration’s efforts to rescind the unobligated funds was unsuccessful, as the
enacted Department of Homeland Security Appropriations Act, 2022 (P.L. 117-103, Division F)
did not rescind the funds. The accompanying explanatory statement accompanying the act
directed the Secretary to “convene a multi-agency working group to identify the impacts of
complete and incomplete border security infrastructure on border security, communities, tribes,
wildlife, and local environments, including the impacts of erosion and improper drainage
associated with partially complete infrastructure projects.”49 Furthermore, the Secretary was
directed to provide a plan to the appropriations committees for addressing such impacts by mid-
November 2022.
FY2023
The Administration proposed three new administrative provisions providing more flexibility with
the use of unobligated border barrier construction budget authority:
• authorization for CBP to use unobligated balances of its “Procurement,
Construction, and Improvement” appropriations from FY2018 to FY2021 for
other specified border management purposes;
• removal of previously enacted restrictions on the types of border barrier that
could be constructed that had been carried in DHS appropriations acts for
FY2018 to FY2020; and

47 H.R. 2, Section 103(2)(B)(v).
48 See the “How to Follow the Money” text box, above.
49 Congressional Record, Daily Edition (March 9, 2022), vol. 168, no. 42, p. H2395.
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• authorization for DHS to transfer up to $225 million in unobligated CBP
Procurement Construction, and Improvement appropriations from prior years to
the Department of the Interior (including any agency or bureau within the
Department of the Interior) or the Forest Service “for the execution of
environmental and other mitigation projects or activities ... related to the
construction of border barriers on the southwest border.”50
None of these administrative provisions were included in the enacted FY2023 consolidated
appropriations measure.51
FY2024
The Administration proposed the same three administrative provisions that it did in FY2023,
though the language no longer referenced FY2018 and FY2019.52
H.R. 4367, the FY2024 DHS appropriations bill developed and passed by the House of
Representatives, included a rescission of $2.104 billion from FY2020 and FY2021 CBP
Procurement, Construction, and Improvement (PC&I) appropriations, and Section 211 directed
$2.104 billion from the FY2024 CBP PC&I appropriation to border barrier construction.53 The
new appropriation would be available for obligation until the end of FY2028. Section 211 also
would place strict limits on barrier parameters and locations for barrier construction, and would
require the Secretary to begin obligation of border barrier construction funding no later than 120
days after the date of enactment. A new administrative provision, Section 212, would restrict the
removal of existing border barriers unless they are being repaired or replaced.54
S. 2625, the Senate Appropriations Committee-reported FY2024 Homeland Security
appropriations bill, included no such rescissions, reappropriations, or language.
Senate Bipartisan Border Proposal (S.Amdt. 1386, 118th Congress)
A bipartisan border security measure negotiated in the U.S. Senate in association with a
supplemental appropriations package would also provide direction on border barrier policy.55
Section 205 of that measure would rescind and reappropriate all unobligated border barrier
construction funding,56 making it available for at least four more fiscal years (through FY2028),
under the same conditions as provided in the original appropriations measures.

50 Office of Management and Budget, Appendix, Budget of the United States Government, Fiscal Year 2023 (U.S.
Government Publishing Office, 2023), https://www.govinfo.gov/app/collection/budget/, p. 530.
51 P.L. 117-328, Division F.
52 Office of Management and Budget, Appendix, Budget of the United States Government, Fiscal Year 2024 (U.S.
Government Publishing Office, 2023), https://www.govinfo.gov/app/collection/budget/, p. 520.
53 While this would appear to be a 1:1 replacement of old balances for new, only unobligated balances are available for
rescission, and given ongoing border construction activity using the unobligated balances targeted by the bill, it is
unlikely such a large amount would be available to rescind at the time of enactment.
54 CRS is unaware of any Biden Administration, DHS, or CBP proposal to remove existing border barriers without
replacing them.
55 S.Amdt. 1386 to H.R. 815.
56 Unlike the rescission and reappropriation in H.R. 4367, this reappropriation was drafted without specific dollar
values, only referencing “unobligated balances” of budget authority specified for border barrier construction and “an
amount of additional new budget authority equivalent to the amount rescinded pursuant to this section.” The FY2020
budget authority will no longer be available for obligation after September 30, 2024, and the FY2021 budget authority
will no longer be available after FY2025.
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Provisos of that same section would require the barriers to be built at locations specified in the
Border Security Improvement Plan submitted to Congress on August 2020, under the Trump
Administration. However, the Commissioner of CBP could reprioritize those projects, or “add
additional miles of pedestrian physical barriers where no such barriers exist, prioritized by
operational requirements developed in coordination with U.S. Border Patrol leadership” with the
prior approval of the appropriations committees.
Finally, before any of the reappropriated funds could be used, the DHS Secretary would have to
submit a report to the Appropriations committees “detailing how the funds will be used, by sector,
to include the number of miles to be built.”
Considerations for Congress
The Power of Appropriations
The legal and administrative handling of the border wall project by the two administrations can
serve as a case study to highlight the power of appropriations law and practice, if properly
overseen. While the Trump Administration secured more funding for border wall construction
through transfers and reprogrammings within DOD, it is the funding appropriated to DHS that is
still building miles of border wall system. Those enacted appropriations measures provided
persistent direction beyond the presidential transition.
It can be argued that border barrier construction was one of President Trump’s highest policy
priorities. Under his administration, $5.84 billion in appropriations were provided by Congress
for border barrier planning and construction. Beginning in 2019, the Trump Administration also
took steps to secure funding beyond the levels approved by Congress for border barriers. More
than $10 billion was redirected from DOD and Military Construction appropriations to border
wall development by the DOD under counterdrug and emergency authorities. Roughly $601
million from the Treasury Forfeiture Fund (TFF) was also transferred to DHS for border wall
construction.
It can also be argued that this priority was a key point of contrast in the 2020 presidential
campaign. Then-candidate Biden campaigned on a platform of stopping border wall construction.
However, the realities of the status of the project and its funding stream have precluded its instant
termination.
The Biden Administration has some authority related to the termination of such activities. For
example, the redirection of DOD and Military Construction appropriations under emergency
authority was quickly stopped by the Administration’s cancellation of the underlying declaration,
and the Administration has chosen not to transfer other funds.
The Biden Administration has limited authority to terminate or otherwise alter activities related to
existing enacted appropriations and associated direction, however. The Administration did have
the flexibility to use unobligated and deobligated DHS border wall construction appropriations to
address a variety of issues with DOD border infrastructure construction projects. However, the
direction to use specific budget authority for border barrier construction within the appropriations
measures required the Administration to move ahead on a policy it did not endorse, absent
legislative redirection. While the Biden Administration sought legislative redirection, through
rescission of the funds or addition of flexibility in its use, Congress did not provide it.
The handling of the transferred funding—both within the Department of Defense and from the
TFF to DHS—was legally distinct from DHS appropriations. These resources were transferred by
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the previous Administration for the purpose of constructing border barriers through executive
action, rather than being provided to construct border barriers in an appropriations act. Thus,
there was no legal requirement that those funds be used for the redirected purpose by the new
Administration. Had the Trump Administration secured DOD or Military Construction
appropriations specifically for border barrier construction, rather than redirecting other
appropriations, similar requirements would have applied.
Advocates for and detractors of border wall construction policy can both look at the flexibility
within the appropriations processes and see benefits. The Trump Administration used the
flexibilities in the Department of Defense budget process to transfer and reprogram budget
authority under two existing authorities to build border barriers (despite congressional objections
from some quarters). The Biden Administration was able to take appropriations provided for DHS
border wall construction and apply them to completion of DOD-initiated projects and remediation
of issues with existing construction. The Biden Administration also refocused DHS construction
efforts to reprioritized areas after the remaining redirected DOD resources were returned to their
original purposes and DOD-funded construction of barriers ceased.
Information for Oversight
Congress has at times been challenged in obtaining information on border barrier construction for
use in public debate. In recent discussions, the Trump Administration, the Biden Administration,
and Congress, in discussions about border barriers, have relied on the U.S. Border Patrol
Impedance and Denial Prioritization Strategy, which includes a list of projects for barrier
construction. This is not a document available for use in public debate, as it is a report to a
specific committee of Congress, and it contents, while not classified information, are restricted
from public circulation.57
There were no known authoritative cost estimates for the total construction or operation and
maintenance costs of these projects if they were all completed, or publicly available assessments
of how completion of various projects might affect CBP’s operational costs.
In its decision regarding whether the delay in obligations for border barrier construction at the
beginning of the Biden Administration was an impoundment, GAO noted the following:
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.58
Some observers note that a new balance may need to be struck on this issue between the need for
strategic and tactical information security and broader availability of information for
congressional and public oversight.
Enforcement
The question may arise as to how Congress could enforce its mandates in a timely fashion should
an administration choose to defy those practices in the future. The Trump Administration had to

57 The Strategy is part of a report to a specific committee of Congress, and is designated Law Enforcement Sensitive.
This designation indicates that the information is sensitive (but unclassified) and for that reason, DHS, by guidance,
restricts circulation of it beyond those with a “need-to-know” to perform official governmental duties.
58 B-333110, p. 1.
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defend its position on the transfer and reprogramming of DOD and military construction
resources to build border barriers in court. Those challenges took time, and absent injunctive
relief, large amounts of the money were obligated before the courts began to rule. Had the Biden
Administration chosen to withdraw appropriated budget authority from availability to obligate,
and allow large amounts of unobligated budget authority to expire rather than using it for its
intended purpose, it is not unlikely that similar court cases might unfold.
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Appendix. Map of Border Patrol Sectors on the U.S-
Mexico Border
Figure A-1. Border Patrol Sectors on the U.S. Mexico Border

Author Information

William L. Painter

Specialist in Homeland Security and Appropriations

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Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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Congressional Research Service
R47979 · VERSION 2 · NEW
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