Trump Can’t Defund New York

National Review Online

Sunday, September 06, 2020

 

Andrew Cuomo can relax. President Trump’s theatrical threat to defund New York and other jurisdictions wracked by rioting isn’t going to amount to much.

 

In the middle of an intense feud with Cuomo, the president signed a memorandum last week purporting to punish select cities for their ineffectual response to disorder. The spirit of the memorandum runs counter to the Constitution, which gives Congress the spending power, although the letter of the memo is limited to the point of meaninglessness.

 

Addressed to Attorney General William Barr and Office of Management and Budget (OMB) director Russell Vought, the memorandum orders a review of federal funding sent to state and local governments that are, as the memorandum puts it, “permitting anarchy, violence, and destruction in American cities.” Specifically, Trump admonishes the leadership in Seattle, Portland, New York City, and Washington, D.C., for their failure to reestablish order within their respective jurisdictions, resulting in “persistent and outrageous acts of violence and destruction.”

 

Trump directs the attorney general to compile this list by evaluating whether local officials have stopped their “police force from intervening to restore order,” “withdrawn law enforcement protection from a geographical area or structure,” “disempower[ed] or defund[ed] police departments,” or “unreasonably refus[ed] to accept offers of law enforcement assistance from the Federal Government.” States and localities places on the list are deemed “anarchist jurisdictions.”

 

The director of the OMB is to then use the attorney general’s determinations to make some of his own. He 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 that the agency has sufficient lawful discretion to restrict or otherwise disfavor anarchist jurisdictions from receiving.”

 

The key phrases are “to the maximum extent permitted by law,” and “sufficient lawful discretion,” which will, if followed, prevent any wholesale defunding of the cities in question.

 

The administration’s attempted defunding of disorderly cities will probably follow the course of its attempted defunding of sanctuary cities. The administration found that there wasn’t much funding it could plausibly try to cut off. Even the relatively minor grants it targeted have been caught up in the courts, which have often ruled that the executive can’t put conditions on funding that Congress hasn’t already written into law.

 

If the memorandum ends up being only a glorified press release, that’s better than the alternative, but it’d be even better if the president didn’t purport to have powers that he doesn’t.