Biden terminated former President Donald Trump’s emergency order that had diverted DOD money for border wall construction based on the former president's assertion of a border security "emergency."

A Corps spokeswoman confirmed on Jan. 22 that work on Dept. of Homeland Security-issued contracts also is halted.

"All border barrier projects executed by [the Corps] are in compliance with the President's proclamation," she said. "Only construction activity that is necessary to safely prepare each site for a suspension of work will occur over the next few days."

The review is assessing the legality of funding and contracting methods and “contractual consequences” of stopping each wall project.

The president also paused the obligation of other sources of funding used since Feb. 15, 2019 to build the contentious 2,000-mile wall that was the centerpiece of Trump’s agenda. The pause includes funds directly appropriated from Congress to the US Dept. of Homeland Security as well as $6.5 billion from the US Treasury Forfeiture Fund.

Meanwhile, the US Supreme Court on Feb. 3 canceled oral argument, set for Feb. 22, and postponed further fiiings in a Trump Administration appeal of a Sierra Club suit against military construction fund diversion for barriers. The high court agreed last year to hear the case, which Trump lost in lower court rulings.

Other lawsuits challenging the Trump diversion of billions in military funding await legal next steps.  In one key case in a federal district court in California, Judge Haywood Gilliam on Jan. 21 requested a report from parties related to how contract halts and pauses will affect the llitigation. He is set to file a joint status report on Feb. 16.

Repurposed Contracts

The Biden executive order requires the Secretaries of Defense and Homeland Security to develop a plan within 60 days to redirect funds for the border wall that will include possible termination or repurposing of contracts with firms now engaged in wall construction.

“This includes which portions of the wall to continue, which contracts to terminate and which contracts to repurpose,” says Joe Tyler, senior advisor at Washington, D.C. consulting firm Dawson & Associates, who is a former Corps deputy director of military programs.

Tyler says the Corps will issue stop-work orders for those contracts at Homeland Security's direction, but the latter agency would not comment on whether those orders have been issued.  

The White House Office of Management and Budget will issue guidance to Homeland Security, he says. The speed of the stop-work orders will depend on those agencies, Tyler says,

According to Tyler, if he were a contractor, he would try to complete as much work as possible before receiving a stop-work order. “Contractors only receive a profit on work that has been completed,” he adds.

If a contract is terminated. the Corps will seek proposals from contractors related to cancellation for convenience. These would include costs incurred up to receipt of the stop-work order. The Corps will validate the costs and final payment will be negotiated. “It could take a number of years,” he says.

The Biden order specifies that an exception to the construction pause is allowed “for urgent measures needed to avert immediate physical dangers” or to ensure that funds appropriated by Congress fulfill their intended purpose.

'Follow the Law'

Missouri Sen. Josh Hawley, (R) on Jan. 19 blocked quick consideration of Biden's Homeland Security Secretary nominee, Alejandro Mayorkas, after questioning him about funds appropriated for the border wall and whether they would be spent as intended, in light of Biden's pledge to halt wall construction. 

“I will follow the law," Mayorkas said, but added that he needs to understand what the law says regarding obligations to fund the wall, “and see what the opportunities are to discontinue any such obligations if in fact the law permits and act accordingly.”

“We are very much encouraged,” Ricardo de Anda, an attorney in Laredo, Texas, told ENR. Much of the state's border has never had a barrier because most adjacent land is privately owned.

Area governments and businesses earlier asked Biden to cancel the emergency declaration and to place a moratorium on construction while agencies studied whether contracts were awarded legally and whether building the 30-ft high bollard wall was the best solution to protect the border.

De Anda says opponents had asked for a six-month moratorium but will settle for 60 days. They also want input as DHS and DOD consider the next steps. “The Congressional authorization for funding calls for consultation with local communities, but Trump ignored it,” he says.

About one-third of the funding for some 77 miles of wall construction for Laredo and Webb County, Texas is from DOD diverted funds. “That construction is off the table,” de Anda says. But funding for the remaining area was appropriated by Congress and will be reviewed during the 60-day study, he adds.

Eminent domain lawsuits to confiscate property for wall construction continue. “We can fight with the government in court, but with the moratorium we no longer fear bulldozers coming in.” says DeAnda, who is defending landowners.

A federal judge in Laredo on Jan.22 ordered the US Justice Dept.to report by Feb. 3 on whether it intends to continue pursuing condemnation of private property for border wall construction in light of the Biden order, which also requires DOJ trial attorneys to consult with DHS and the Corps of Engineers.

Marianna Wright, executive director of the 100-acre National Butterfly Center adjacent to the border near Mission, Texas, is concerned that loopholes and qualifications in the Biden order give no assurance that construction will come to an end, she told ENR. The federal wall route is through the preserve's property, and is congressionally funded.

“We fear it’s politics as usual even with the adults in charge,” she says.