The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Going Rogue
As we enter the height of presidential campaign season, the Trump administration is making its case for a second term in the White House. And oh what a case it is.
It is only Wednesday, but already this week we have gotten plenty of fun news. The Secretary of State announced that the United States would impose sanctions on a prosecutor of the International Criminal Court who is investigating American personnel for war crimes. The Center for Disease Control announced an order prohibiting evictions of private tenants from privately owned residences for unpaid rent. The president himself encouraged his supporters in North Carolina to commit vote fraud.
And now, a memo directing the Office of Management and Budget to withhold federal funds from "anarchist jurisdictions" like, um, New York City. The key element:
Sec. 3. Restrictions on Federal Grant Funding. To advance the policy set forth in section 1 of this memorandum:
(a) Within 14 days of the date of this memorandum, and updated as appropriate but no less than every 6 months thereafter, the Attorney General, in consultation with the Secretary of Homeland Security and the Director of OMB, shall publish on the Department of Justice website a list identifying State and local jurisdictions that have permitted violence and the destruction of property to persist and have refused to undertake reasonable measures to counteract these criminal activities (anarchist jurisdictions).
(b) In identifying anarchist jurisdictions, the Attorney General, in consultation with the Secretary of Homeland Security and the Director of OMB, shall consider, as appropriate:
(i) whether a jurisdiction forbids the police force from intervening to restore order amid widespread or sustained violence or destruction;
(ii) whether a jurisdiction has withdrawn law enforcement protection from a geographical area or structure that law enforcement officers are lawfully entitled to access but have been officially prevented from accessing or permitted to access only in exceptional circumstances, except when law enforcement officers are briefly withheld as a tactical decision intended to resolve safely and expeditiously a specific and ongoing unlawful incident posing an imminent threat to the safety of individuals or law enforcement officers;
(iii) whether a jurisdiction disempowers or defunds police departments;
(iv) whether a jurisdiction unreasonably refuses to accept offers of law enforcement assistance from the Federal Government; and
(v) any other related factors the Attorney General deems appropriate.
(c) Within 30 days of the date of this memorandum, the Director of OMB shall 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 that the agency has sufficient lawful discretion to restrict or otherwise disfavor anarchist jurisdictions from receiving.
As with many executive orders issued by this president, this one might be a lot of public relations fanfare with very little policy punch. Once the OMB starts getting down to legal technicalities, it might well find that lo and behold there are very few federal funds that can be conditioned under existing statutory authority on whether a jurisdiction engages in adequate law enforcement. Of course, that alone might not be enough to prevent the administration from trying to push the envelope and wait for a court to strike down their efforts sometime next year.
At this point, it is yet another demonstration that this administration cares not a whit about about the proper constitutional separation between federal and state authority. There are plenty of local political officials who amply deserve losing office for neglecting their responsibilities for providing the effective protection of individual rights of the citizens who live within their jurisdictions. Whether any of that will redound to Trump's electoral advantage remains to be seen, but the president seems incapable of recognizing the limits on his own legal authority or of understanding the basic features of the American constitutional system.
Meanwhile, Joe Biden answered a question about presidential national mask mandates by asserting that "I am a constitutionalist." Unfortunately, he did not follow that up by recognizing that the president has no authority to issue national mask mandates, and he contrasted his own concern with constitutional limits with the apparent lack of such concern on the part of the other candidates for the Democratic nomination for the president (one of whom he selected as his vice president). On the whole, not a reassuring message about either party's commitment to respecting constitutional limits on power.
Pick your poison.
