Just for a point of clarity since I imagine you are both foreigners, you're speaking of the "House of Representatives" - both that and the Senate make up Congress together.
My mention of "congress" there was the fact that the number of seats is established by statute, which has to pass both chambers. The House can't do that sort of thing on its own.
https://www.nbcnews.com/politics/immigration/biden-administration-waives-federal-laws-allow-border-wall-constructio-rcna118959
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 in the project areas pursuant to sections 102(a) and 102(b) of IIRIRA.
Document from the same Mayorkas. He's lying. The Biden administration is lying. And when they're called out on their lies, they send out the press secretary to deflect, gaslight, and lie some more.
Kind of hard to claim you were forced to do something when you waive environmental laws to avoid getting slowed down by litigation.
So it's more complicated than this.
In the
FY2019,
FY2020, and
FY2021 omnibus appropriations bills congress set aside funding for a border wall. In FY2019 this includes $1.375 billion for "the construction of primary pedestrian fencing, including levee pedestrian, in the Rio Grande Valley Sector." In FYF2020 and as incorporated in FY2021 this includes the same amount of money "for construction of a barrier system along the southwest border." Now obviously all of these fiscal years are old - we just entered FY2024 after all.
By default (i.e. unless otherwise explicitly designated, which is quite rare) appropriations bills only appropriate for a single year... however despite the reputation it's not always easy for a government agency to spend money, and it's pretty common for there to be unspent funds at the end of a given year. These funds are not automatically forfeited, probably to discourage some of the 'use it or lose it' mentality you see in similar situations in other institutions, though congress will often look to 'clawing back' unspent funds to pay for some other priority.
When Biden became president
one of his first Executive Orders was (among other things) an indefinite pause on using those funds, with certain exceptions and "to the extent permitted by law." It then directs DOD and DHS to "develop a plan for the redirection of funds concerning the southern border wall, as appropriate and consistent with applicable law."
Basically, the Executive Branch is ideally supposed to be executing the law faithfully as written (obviously defining this is hard, and pretty much every president has tried to stretch the limits of this), so they ought to to spend money that congress says should be spent. Alternatively framed, refusing to spend the money could be interpreted as a line item veto, which is unconstitutional per Supreme Court ruling. So they can't just say 'nope', but they can look into alternative methods that meet the letter of the law, etc. etc.
Later that year, the GAO (Government Accountability Office) issued
an opinion noting that most of the FY2019 and FY2020 money has already been obligated, FY2021 is still pretty much unobligated, but that the delays are legal in part because they are not "impoundments." GAO suggested congress maybe look into some oversight (while GAO issues opinions, they don't really have the force of law or much enforcement ability in general).
As one might imagine some states (among others) filed a lawsuit seeking to compel expenditure of the money; these cases have made their way through the courts at a glacial pace, with the most recent decision (back in June of this year) saying they do in fact have standing given new S.Ct. precedent created during the course of the lawsuit.
So, in short, the current question on legality of the 'indefinite pause' was more or less unsettled. The Biden Administration hasn't yet been
forced to spend the money, though given more time it's possible they would have been, especially with the current Supreme Court.
For what it's worth, the full FR quote:
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 FR 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. The areas in the vicinity of the border within which such construction will occur are more specifically described in Section 2 below. Such areas are not located within any of the areas identified in section 231 of title II of division A of the Fiscal Year 2019 DHS Appropriations Act.
SeePublic Law 116–6, Div. A, Title II, sec. 231.
Basically saying 'there's a need, but we also have to spend this money'. So it's a fig leaf, but the leaf does have some mass to it.
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