This is what a president does when he thinks he can do whatever he wants.
Typically, when the White House releases a document laying out a new policy, that document includes at least a few paragraphs explaining why the president has legal authority to set that policy. President Trump’s latest policy memo, which seeks to strip federal funding from “anarchist jurisdictions,” does not even make this basic concession to the fact that the president is bound by laws.
The nearly 1,500-word memo does not contain a single legal citation. No statutes or judicial decisions are mentioned. It’s as though it were written by someone who is blissfully unaware that there is an entire profession — lawyers — whose job is to give advice on whether particular actions are lawful or unlawful, and to provide legal arguments supporting their clients’ actions.
The broad policy laid out in the memo — stripping federal funding from various cities because the president disagrees with those cities’ policing policy — is unconstitutional.
The federal government may attach conditions to federal grants, and it may strip funding from states or localities that do not comply with those conditions. But its power to do so is not unlimited. As the Supreme Court explained in South Dakota v. Dole (1987), “if Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously … enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.’”
A key word in this passage is “Congress.” The legislative branch may impose new conditions on federal grants, but Trump is not Congress. He may not.
What does Trump’s memo actually do?
The policy announced in the “anarchist jurisdictions” memo is not fully implemented. Trump did not explicitly order the government to cut off funding to anyone — yet. Rather, he instructed the Justice Department to come up with a list of cities that should lose funding, and he instructs the White House Office of Management and Budget (OMB) to limit funding to these cities “to the maximum extent permitted by law.”
It’s likely that the executive branch has no lawful authority to cut off funding to these cities. But the Justice Department and OMB will only reach that conclusion if the task of implementing the memo is assigned to competent lawyers who interpret existing law in good faith, and the mere existence of this memo inspires little confidence that they will do so.
Within two weeks, the memo instructs Attorney General Bill Barr to publish a list of “anarchist jurisdictions” on the DOJ’s website. The memo also lays out a few criteria that Barr may use in determining which jurisdictions deserve such public shaming, though many of these criteria are quite vague.
A city might wind up on the list because the Trump administration thinks that it “disempowers or defunds police departments,” or because the administration believes that the city “unreasonably refuses to accept offers of law enforcement assistance from the Federal Government.”
While the memo does not explicitly order Barr to add certain cities to the list, it communicates that specific cities should be included. The memo requires federal agencies to detail “all Federal funds provided to Seattle, Portland, New York City, Washington, D.C.” Much of the memo criticizes policing policy in these four cities.
While the Justice Department is coming up with its list of disfavored cities, OMB Director Russ Vought must “issue guidance to the heads of agencies on restricting eligibility of or otherwise disfavoring, to the maximum extent permitted by law, anarchist jurisdictions in the receipt of Federal grants.”
Though the memo does not explicitly state which federal grants should be cut off, it hints that the amount of money at stake could be enormous. “The Federal Government provides States and localities with hundreds of billions of dollars every year,” Trump’s memo states, and this money funds “a wide array of programs, such as housing, public transportation, job training, and social services.”
The executive branch does not have the power to cut off funding to cities
The 10th Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Implicit in this amendment, according to the Supreme Court, is a doctrine known as “Anti-Commandeering,” which typically prevents the federal government from giving orders directly to state officials such as state and local police.
As the Court explained in Murphy v. NCAA (2018), “conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.”
But, while the federal government may not directly order local police to take certain actions — it cannot, for example, order those police to crack down on protests that the president disapproves of — the federal government can place conditions on federal grants that states must comply with if they wish to keep that money.
The Dole decision, however, lays out several limits on the federal government’s power to attach conditions to grants — a few of which are relevant to Trump’s memo.
First, as mentioned above, the power to impose conditions is vested in Congress, not the president, so unless Trump can convince Congress to pass a law targeting “anarchist jurisdictions,” he may not impose new limits on existing federal grants.
Second, when Congress does impose a condition on a federal grant to a state or local government, it “must do so unambiguously,” so that states are not surprised by unexpected obligations. In the Supreme Court’s words, grant recipients must be able to “exercise their choice knowingly, cognizant of the consequences of their participation.” If they don’t want the conditions, they don’t have to accept the money in the first place.
Thus, if the Trump administration wants to argue that an existing federal law permits it to strip federal funding from “anarchist jurisdictions,” it faces a heavy burden. It must find an existing law that clearly imposes specific policing obligations on states and localities. It is, to say the least, unlikely that Congress has already enacted a law that unambiguously permits Trump to strip federal funds due to a personal disagreement over local policing strategy.
Finally, Dole also states that conditions imposed on federal grants must be germane to the grant itself. As the Court put it, “conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’”
This germaneness requirement is not particularly strict. Dole for example, permitted Congress to strip some federal highway funding from states that did not raise their drinking age to 21. The Court concluded that a higher drinking age is sufficiently related to highway funding because less drinking means less drunk driving, and thus safer highways.
Nevertheless, the federal government may not impose conditions on grants that are completely unrelated to the purpose of that grant. If Trump attempted to strip all Medicaid funds from cities over a disagreement about policing policy, for example, courts could very well balk.
Trump’s “anarchist jurisdictions” memo is not the first time that the Trump administration attempted to cut federal funding from states or localities over police-related disagreements. And most of the judges who considered the administration’s previous attempts agree that the administration acted unlawfully.
The Trump administration, for example, attempted to cut off a small federal criminal justice grant to jurisdictions that did not help the administration crack down on immigrants. At least three federal appeals courts concluded that the administration acted unlawfully — though one outlier court did not.
The outlier court, however, rested much of its decision on a novel claim that the Anti-Commandeering doctrine has less force in immigration-related cases. Whatever the merits of that highly unusual argument, Trump’s “anarchist jurisdictions” memo primarily concerns local policing of American citizens and does not even mention immigration.
So if the courts follow existing law — and there is always some risk that they won’t, given the growing number of deeply ideological Trump-appointed judges on the federal bench — Trump’s memo should fall. The president does not have the constitutional authority to strip funding from state or localities without congressional authorization to do so.
Yet, the fact that the law governing this memo is so tilted against Trump means that the stakes in any lawsuit challenging the memo will be very high. Trump wants a police crackdown on political dissidents. He lacks the legal authority to order such a crackdown. And so, without citing any legal justification whatsoever, he simply announced a plan to punish cities that don’t implement that crackdown.
This is not how presidents behave in a constitutional democracy. It is how authoritarian dictators behave. And if the courts allow Trump to punish cities in this way, it’s far from clear that they will impose meaningful limits on an increasingly imperious president.
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Author: Ian Millhiser
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