Legal Guidance Re: the President’s Threat to Restrict Funding to Politically-Disfavored States & Cities

Washington, DC—Today, Protect Democracy released legal guidance that details the various laws President Trump would violate were he to attempt to restrict funding to politically disfavored cities and localities, as suggested in his “Memorandum on Reviewing Funding to State and Local Government Recipients That Are Permitting Anarchy, Violence, and Destruction in American Cities,” issued by the White House on September 2, 2020.

According to the guidance, while “the Memorandum does not on its own terms deny funding to states and localities—instead, it announces a federal policy, and initiates a government-wide effort, to deny funding to politically-disfavored ‘anarchist jurisdictions’ on the basis of arbitrary and unlawful criteria.”

Erica Newland, counsel for Protect Democracy, explains that “denying federal funds to cities based on political preferences would violate federal law and the Constitution. The president’s memorandum also continues a pattern of illegal threats made by President Trump: His administration has tried to condition law enforcement funding on compliance with federal immigration enforcement efforts, and he has repeatedly required that governors and mayors behave favorably towards him in order to receive PPE and ventilators in the midst of a global pandemic. The law is clear: The federal government can’t play favorites based on politics. This corruption must stop.”

Protect Democracy has been at the forefront of battling the president’s abuses of power, working to rebut his efforts to penalize so-called “sanctuary cities” and his efforts to politicize the distribution of medical supplies to states. As noted in a Lawfare article published on April 22, 2020, and co-authored by Protect Democracy counsels Christine Kwon, Erica Newland, and Kristy Parker, “the Take Care Clause requires the president to act for the benefit of all Americans, not just political allies. The Tenth Amendment prevents the president from conditioning states’ receipt of federal aid on their governors’ fealty to his administration. The Fifth Amendment prohibits the president from depriving states’ constituents of lifesaving medical resources in ways that shock the conscience and violate the decencies of civilized conduct. And the First Amendment prohibits the president from withholding assistance to states to punish either their governors for criticizing the president or residents of politically disfavored states for associating with an opposing political party.”

The legal guidance is available here.