The Volokh Conspiracy
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Trump's Unconstitutional Plan to Penalize States that Allow Cashless Bail
His executive order directs the Justice Department to deny federal funds to jurisdictions that use cashless bail for suspects for many types of crimes. The plan is another assault on federalism and separation of powers.
President Trump recently issued an executive order directing the Justice Department to penalize jurisdictions that allow cashless bail, by withholding federal funds from them:
On Monday, President Donald Trump, who has called cashless bail a "government-backed crime spree," signed an executive order to end the policy nationwide. The order restricts the allocation of "Federal policies and resources" to jurisdictions and states with cashless bail policies for "crimes that pose a clear threat to public safety and order." It tasks Attorney General Pam Bondi with creating a list of such jurisdictions within 30 days, at which point the federal funds of these jurisdictions may be suspended or terminated.
Like a number of other Trump policies, this is simultaneously an attack on federalism and an attempt to usurp Congress' spending power. Supreme Court precedent - most of it authored by conservative justices - holds that only Congress can impose conditions on state and local governments receiving federal grants, and those conditions must be clearly stated in the statutes allocating the funds. There are a number of other constitutional constraints on grant conditions, as well.
This issue has come up most often with Trump's efforts to use grant conditions to coerce sanctuary cities, which limit state and local law enforcement assistance to federal immigration enforcement operations. See my Texas Law Review article on the numerous defeats Trump suffered in his first term, on this issue. That has continued with several court decisions ruling against similar attempts to coerce sanctuary cities in his second term (see my analyses here, here, and here).
As noted in my November 2024 post on sanctuary cities and conditional grants, longstanding Supreme Court precedent holds that conditions on federal grants must 1) be enacted and clearly indicated by Congress (the executive cannot impose its own grant conditions), 2) be related to the purposes of the grant in question, and 3) they must not be "coercive."
All of these constraints apply to Trump's attack on cashless bail, as well. Few, if any, federal grants have congressionally enacted conditions restricting cashless bail. And if we are talking about grants that are not closely linked to law enforcement purposes, imposing such conditions would violate the relatedness requirement. And if Trump wants to pull all or most grants from such jurisdictions, that is likely to violate the admittedly vague "coercion" constraint.
In addition, this is an attempt to insert the federal government in a core traditional area of state and local authority. Few powers are more central to state and local autonomy than control over state criminal law enforcement. I'm old enough to remember a time when conservatives cared about limiting federal intrusion on areas of state autonomy. This is a pretty blatant example.
This order should also be seen in the context of Trump's broader assault on Congress's fiscal authority. The Constitution clearly gives Congress, not the executive, power over taxation and spending. Yet Trump has sought to impose unilateral executive conditions on grants, withheld funds allocated by Congress, usurped authority over tariffs on a massive scale, and imposed unconstitutional export taxes. This bail measure is yet another usurpation.
The Framers of the Constitution rightly wanted to avoid giving power or taxation and spending to any one man. They remembered the abuses of monarchs such as Charles I. We would do well to heed that wisdom, too.
The courts have, in many cases, curbed Trump's fiscal power grabs. But Congress should also act. Sadly, the GOP congressional leadership has largely either ignored Trump's usurpations of legislative authority or actively applauded them.
Unlike in the case of sanctuary cities, which I have long defended on a variety of grounds, I don't have much in the way of strong views on bail policy, and am not an expert on the subject. But the issue of when to grant bail or deny it is one the Constitution generally leaves to the states, at least when it comes to state crimes. The exception is the Eighth Amendment ban on "excessive" bail, which the Supreme Court construes relatively narrowly.
I will only add that there is a significant civil liberties angle here. In a free society, there should be a strong presumption against detaining or imprisoning people who have not been convicted of any crime. The presumption might be overcome in cases where a suspect poses some grave threat to public safety or cannot otherwise be prevented from fleeing the jurisdiction. But overcoming it should at least require a compelling showing that there is a grave threat or a flight risk. Requiring payment of bail is not as coercive as pretrial detention without bail. But there may be little difference between the two in cases where the suspect is indigent or does not have ready access to cash.
Trump's executive order defines situations where cashless bail must be banned to include suspects in custody "for crimes that pose a clear threat to public safety and order, including offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism." That covers everything from very serious crimes like murder and rape to very minor ones like public "indecency" and spray-painting an inscription on the side of a building (a type of vandalism).
If the defendant is convicted, time spent in pretrial detention may count against his or her sentence. But that is little consolation if the suspect is acquitted or if they are sentenced to a fine or probation.
In sum, I am not sure what the optimal bail policy is. But there is reason to be wary of sweeping rejection of cashless bail. There is even more reason to be wary of this administration's ongoing assaults on federalism and attempts to usurp Congress's fiscal authority.
UPDATE: I have made a few additions to this post.
