Liz Farmer Senior Contributor, Forbes.com
Sep 8, 2020 | 2:20pm EDT
President Trump is threatening to keep federal funding from New York City, Portland, Oregon; Seattle, and Washington, D.C. — and potentially others — where racial justice protests have sometimes turned violent.
In the executive order issued just before the holiday weekend, Trump blamed local government policies for “persistent and outrageous acts of violence and destruction have continued unabated in many of America’s cities.” He wants each federal agency to submit a report to the director of the Office of Management and Budget (OMB) detailing all federal funds to the four cities.
“My Administration will not allow Federal tax dollars to fund cities that allow themselves to deteriorate into lawless zones,” he wrote.
He also wants a blacklist — of sorts. Trump called on the attorney general, in consultation with the secretary of Homeland Security and the OMB director to publish on the Department of Justice website a list so-called “anarchist jurisdictions,” including states. This list is to be published within two weeks and updated every six months.
Among the qualifying factors for an anarchist jurisdiction
Whether it “disempowers or defunds police departments,”
If it “unreasonably refuses to accept offers of [federal] law enforcement assistance,”
And the ambiguous, “any other related factors the Attorney General deems appropriate.”
This isn’t the first time Trump has threatened to withhold funding from cities with policies he disapproves of and then — as now — the legality of his order is highly suspect. On Tuesday, the U.S. Conference of Mayors fired off a letter to the president saying it was “deeply dismayed” by the memo and promised to challenge it in court if implemented.
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“We strongly urge you to immediately rescind the Memorandum and halt the process of attempting to defund critical city services,” the letter said. It later added, “if your Memorandum were to be implemented – slashing resources for police, firefighters, and other first responders along with a range of other essential services to residents – the result would be American cities that are much less safe.”
Will Trump succeed?
Trump has had mixed results in a previous attempt to withhold federal funding via executive order. At the beginning of his presidency, he issued a similar order directed at sanctuary cities on the argument that such policies undermined public safety. (Sanctuary jurisdictions are states and cities that do not cooperate with U.S. immigration authorities.) While it isn’t legal for the federal government to arbitrarily withhold general funding states and cities, it does have some discretion regarding federal money tied to specific purposes.
For example, in the 1980s, the U.S. Supreme Court ruled that Congress could legally take away 5% of states' highway money if they didn’t raise the drinking age to 21.
On the other hand, Chief Justice John Roberts wrote in the 2012 Affordable Care Act case ruling that the federal government can’t coerce states or cities into action with a financial “gun to the head” and that federal officials can’t “commandeer” state officials to do their work for them.
So, in carrying out Trump’s 2017 order, then-attorney general Jeff Sessions tailored it to federal, public safety-related grants. This significantly pared down Trump’s original threat from billions of dollars to millions (San Francisco stood to lose $1.5 million, for example). But the approach stood a better chance of holding up legally.
Even so, it wasn’t until earlier this year that an appellate court sided with the administration on the matter. Rulings by three other appeals courts affirmed lower court rulings that the White House could not tie grant money to state and local governments’ cooperation with federal immigration authorities. (State and local governments said in February they would fight the decision by the U.S. Court of Appeals for the Second Circuit in Manhattan.)
This time around, the legality of the initial order is again highly questionable. Unlike the sanctuary cities order, Trump’s memo this time only targets four cities (although he does give the DOJ discretion to name others). It’s worth noting that all four cities have Democratic mayor and are in decidedly blue states. Trump omitted naming cities like Miami and Louisville, where protests have turned violent but were located in cities in red states.
Sam Berger, a former senior official at OMB, told The Washington Post that Trump’s directive was unlikely to survive legal scrutiny. “This is a campaign document coming out of the White House,” he said.
This story was originally published on Forbes.com