This is a single screenshot from today’s New York Times article about the Biden administration’s announcement that it is building new segments of border wall. The highlighted bits are a few paragraphs apart.

<highlight>“There is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States,”</highlight> said Mr. Mayorkas in the notice. It added that construction would be built with funds appropriated by Congress in 2019 for wall construction in the Rio Grande Valley. That appropriation followed a disaster declaration by the Trump administration amid soaring numbers of border crossers. Mr. Biden said on Thursday that he had no choice but to use the money for the wall. “The money was appropriated for the border wall. I tried to get them to reappropriate, to redirect that money. They didn’t. They wouldn’t,” he told reporters, apparently referring to Congress. <highlight>Asked whether he thought the border wall was effective, he replied, “no.”</highlight>

It’s unusual to see that much self-contradiction in such close proximity.

If you listen to President Biden today, it sounds like his administration has been forced, against its will, to waive 26 environmental and cultural laws to build abut 20 miles of border wall in Starr County, in south Texas.

But if you listen to the Department of Homeland Security language in the Federal Register, it looks like they’re doing this out of a newfound enthusiasm for border walls.

Biden is correct: the wall-building money comes from 2019 appropriations, passed for then-president Donald Trump by a Republican congressional majority, which the Biden administration and congressional Democrats were unable to rescind. The Impoundment Control Act says that presidents have to spend money as Congress appropriates it, before it expires.

The money in question is in the blue section of this chart, in the 2019 column. (The chart comes from a January 2020 commentary I wrote for WOLA.) By the time Trump left office, the 2017 money was spent, the 2018 money was all but spent, but most of the 2019 money was not, and the 2020 money hadn’t been touched yet. (See this October 2020 “Border Wall Status” report that I saved.)

A 2020 chart breaking down sources of border wall money. The "blue part," denoting congressional appropriations, is $441 million in 2017 and $1.375 billion in each of 2018, 2019, and 2020.

So President Biden is right: he had no choice but to spend the border wall money before it expired, presumably with the September 30 end of the government’s 2023 fiscal year. But his administration has done a poor job of explaining that today.

Update October 7: After a lot of conversations about this on October 5 and 6, and I feel I should soften the “Biden is right” language above, because it’s more complicated.

While it’s true that Biden had to use the 2019 appropriations money, it’s unclear whether the Impoundments Act required him to waive 26 laws to proceed with the wall construction.

This is a question that federal courts would probably have to resolve. As seen in recent cases, the decision would likely be made following a lawsuit—possibly filed in the federal judiciary’s conservative Fifth Circuit by Republican state governments. It’s probable that the case would escalate to the Supreme Court. It’s understandable that the Biden administration would prefer not to engage its Justice Department in this litigation, considering it could drag on for a couple of years and potentially result in an unfavorable precedent.

However, the question remains: why didn’t the administration devise a barrier design that met congressional requirements without needing to waive environmental and other laws? Such a design would have been more likely to withstand legal scrutiny, and would have earned less criticism from environmental advocates and the President’s supporters.

One possible explanation is internal bureaucratic politics. The wall designs for Starr County were initially conceived during the Trump administration. It’s plausible that career officials from the Department of Homeland Security and Customs and Border Protection (among them, one suspects, the drafters of that “acute and immediate need” language) were resistant to revisiting the designs. It seems that the Biden administration’s political appointees were not prepared to push back strongly on this issue. So here we are.