Missouri Attorney General Eric Schmitt, along with the Texas Attorney General’s Office, filed suit against the Biden Administration for refusing to spend money appropriated to continue to build the wall on the southwest border as the border crisis continues to worsen. The lawsuit aims to force the Biden Administration to resume construction on the border wall.
On January 20, 2021, the Biden Administration issued a Proclamation halting the construction of the border wall, including projects that are funded by direct appropriations. Further, the Department of Homeland Security cancelled border wall construction contracts on October 8, 2021. The lawsuit argues that the Biden Administration’s refusal to use appropriated funds to build the border wall is a violation of the separation of powers and the Take Care clause of the Constitution, is arbitrary and capricious, and fails to spend appropriations mandated by the Consolidated Appropriations Act of 2020 and 2021.
“Time and again, the Biden Administration has refused to take concrete action to quell the worsening border crisis, inviting the cartels and human and drug smugglers to take advantage of our porous border. Without a border wall, illegal immigrants, coyotes, and bad actors can simply march across our southwest border and into the interior. The border wall needs to be built, the funds have been appropriated to continue to build the wall, and yet the Biden Administration outright refuses to do so,” said Attorney General Schmitt. “As Missouri continues to fight human trafficking, an unsecured border only worsens that scourge of human trafficking across the country and within Missouri’s borders. Earlier this year, I sued the Biden Administration for their cancellation of the ‘Remain in Mexico’ policy and won at the district court, 5th Circuit Court of Appeals, and the United States Supreme Court. Missouri stands ready to hand the Biden Administration another loss. If Joe Biden continues to refuse to take the necessary steps to secure the border, Missouri will.”
In the Consolidated Appropriations Act of 2020, Congress specifically appropriated $1.375 billion for “construction of barrier system along the southwest border.” The Act specifically stated that the designated amount “shall only be available for barrier systems.” Similarly, the FY2021 DHS Appropriations Act provided the same amount of funds to construct a border wall, bringing the total appropriated to roughly $3 billion dollars.
Yet, as the lawsuit notes, the Biden Administration and the Department of Homeland Security have not used those appropriations to continue construction on the vital border wall. In a January 20, 2021 Proclamation, the Biden Administration halted the construction of the border wall. Further, on October 8, 2021, the Department of Homeland Security announced its decision to terminate “the remaining border barrier contracts” that were entered into for the purpose of building the border wall that Congress mandated.
The lawsuit states, “Following the Proclamation issued on January 20, DHS implemented it by stopping all work on any border wall projects, including border fencing or associated structures, leaving hundreds of miles of planned and funded—but unfinished—wall along the southwest border.”
The lawsuit continues, “In fact, DHS has taken specific steps pursuant to the Proclamation to ensure that the wall never gets built. On June 11, DHS released a plan for use of the appropriated border wall funds, which, consistent with President Biden’s Proclamation, refused to use the funds to construct the wall, even though DHS acknowledged that it is ‘legally required to use’ such funds ‘consistent with their appropriated purpose.’ Notably, DHS ‘call[ed] on Congress to cancel funds it previously appropriated for border barrier projects so that these resources can instead be used for modern, effective border measures.’”
The Government Accountability Office stated on June 15th, 2021, that, in the face of the Department of Homeland Security’s requests that Congress should cancel the appropriations given for the continued construction of the border wall, “Until and unless Congress cancels those funds, the law requires DHS to use the funds consistent with their appropriated purpose.”
The lawsuit argues that the Biden Administration’s January 20th proclamation and DHS’s actions implementing the proclamation run afoul of the Constitution and federal law, stating, “The President had neither constitutional nor statutory authority to refuse to spend funds Congress authorized mandating the construction of the border wall, and thus DHS acted without any authority to implement the January 20 Proclamation, including cancelling contracts entered into for the purpose of building the border wall.”
The lawsuit incorporates seven counts. The suit asks the Court to declare that the Biden Administration’s termination of funding and construction of the border wall is unlawful and force the Biden Administration to continue to build the border wall.
The full lawsuit, which was filed in the Southern District of Texas, can be found here: https://ago.mo.gov/docs/default-source/press-releases/2021-10-21---mo-and-tex-v-biden---border-wall---complaint---file-ready.pdf?sfvrsn=2bc79c85_2
The Missouri Attorney General’s Office and the Texas Attorney General’s Office previously sued the Biden Administration over its cancellation of the “Remain in Mexico” Policy and won at the district court, and both the Fifth Circuit and the Supreme Court ruled in the States’ favor and refused to stay a nationwide permanent injunction pending appeal, requiring the Biden Administration to reimplement the program.