President Donald Trump on Wednesday unveiled a memo aimed at withholding federal funding from several cities, all of them led by Democrats. The administration is targeting what it called “anarchist jurisdictions.” The five-page Presidential Memorandum, which failed to cite any legal authority as a basis for such a drastic measure, was immediately condemned by lawyers, law professors, government experts and legal journalists as unlawful.
“Unfortunately, anarchy has recently beset some of our States and cities,” said Trump-signed memo, which was directed to U.S. Attorney General William Barr and Office of Management and Budget (OMB) director Russell Vought. “For the past few months, several State and local governments have contributed to the violence and destruction in their jurisdictions by failing to enforce the law, disempowering and significantly defunding their police departments, and refusing to accept offers of Federal law enforcement assistance,” the memo continued, before specifically calling out Portland, Seattle, and New York.
Trump followed up on the memo with a tweet reiterating his threat to restrict federal funding from going to “weak mayors and lawless cities” that condone “anarchists.”
My Administration will do everything in its power to prevent weak mayors and lawless cities from taking Federal dollars while they let anarchists harm people, burn buildings, and ruin lives and businesses. We’re putting them on notice today. @RussVought45
— Donald J. Trump (@realDonaldTrump) September 3, 2020
The effort to defund cities run by his political opponents is not new for the Trump administration. The administration has repeatedly attempted to withhold federal money from sanctuary cities, the name given to cities and states that protect undocumented immigrants from deportation. Earlier this year the Justice Department’s attempt to deny federal law enforcement grants to sanctuary cities faced several legal challenges with three of four circuit appeals courts ruling against the administration.
President Trump’s threats to deny funds to New York are nothing more than a desperate, last ditch election strategy by a president too weak to lead us through the crises our nation is facing.
President Trump, prepare for legal action if you threaten New York again.
— NY AG James (@NewYorkStateAG) September 3, 2020
“I don’t understand how any lawyer can look at this, and have any o[u]nce of professional respect left for Barr,” wrote University of California Irvine School of Law professor Omri Marian, a taxation expert.
I don't understand how any lawyer can look at this, and have any once of professional respect left for Barr. https://t.co/JzEN1zUmzX
— Omri Marian (@Omri_Marian) September 3, 2020
Sasha Samberg-Champion, a former DOJ Civil Rights Division attorney during the Obama administration, said the current administration was making a mockery of the DOJ.
“They’re not even trying to follow the law anymore. What a joke this administration is making of the DOJ,” he wrote. “As courts have repeatedly reminded the Trump Administration, the Spending Clause power is in Article I. It belongs to _Congress._ And Congress has not seen fit to condition federal money on any of this.”
As courts have repeatedly reminded the Trump Administration, the Spending Clause power is in Article I. It belongs to _Congress._ And Congress has not seen fit to condition federal money on any of this. https://t.co/6fFHld0pI3
— Sasha Samberg-Champion (@ssamcham) September 3, 2020
Samberg-Champion further criticized Trump administration lawyers for not even attempting to articulate a legal basis for the measure.
“They’ve moved on from making bad legal arguments to not even trying. Which raises the question of what lawyers signed off on this (or didn’t),” he wrote. “The story isn’t just that this memo is unlawful (since that’s pretty obvious). The story is that the WH isn’t even bothering to try to ground its order in the law. That’s scary. That’s a big story.”
Former head of the DOJ’s Civil Rights Division Vanita Gupta, another Obama administration alum, said the memo was dangerous because it purports to empower Attorney General Barr with broad authority to define “anarchist jurisdictions” however he deems fit.
“DOJ’s definition of ‘anarchist jurisdictions’ includes ‘any other related factors the Attorney General deems appropriate.’ This is actually happening. On our watch. I can’t imagine what four more years of Trump-Barr would mean for our democracy,” she wrote.
DOJ’s definition of “anarchist jurisdictions” includes “any other related factors the Attorney General deems appropriate”
This is actually happening. On our watch. I can’t imagine what four more years of Trump-Barr would mean for our democracy. https://t.co/jDmgNmSC4Z
— Vanita Gupta (@vanitaguptaCR) September 3, 2020
University of Texas Law professor Steve Vladeck, who called the memo “partisan” and “subjective,” wondered where the advocates of federalism have gone.
I look forward to conservatives who have spent decades extolling the virtues of federalism and the "equal sovereignty of the states" now defending the selective defunding of cities based upon partisan, subjective criteria that have nothing to do with compliance with federal law. https://t.co/vHRFjHQPUG
— Steve Vladeck (@steve_vladeck) September 3, 2020
“I look forward to conservatives who have spent decades extolling the virtues of federalism and the ‘equal sovereignty of the states’ now defending the selective defunding of cities based upon partisan, subjective criteria that have nothing to do with compliance with federal law,” he said.
University of Iowa Law professor Andy Grewal, a tax law and constitutional law expert, “laughed” and said “[w]e are living the dumbest times.”
Not sure why but I laughed. We are living in the dumbest times. https://t.co/iCEMPlmwiU
— Andy Grewal (@AndyGrewal) September 3, 2020
What about the term “anarchist jurisdictions” itself? That’s like saying jumbo shrimp, others said. (White House press secretary Kayleigh McEnany referred to these jurisdictions as “lawlessness zones” on Thursday.)
"anarchist jurisdiction": anarchy is the absence of law, jurisdiction is the power to make/determine law https://t.co/WLbB42mPZ0
— Scott Shapiro (@scottjshapiro) September 3, 2020
I'm having difficulty squaring NYC's status as an "anarchist" jurisdiction with the fact that it takes 54 separate approvals for a contractor to put a screw in my walls. https://t.co/CaCCg26V9X
— David Noll (@davidlnoll) September 3, 2020
The phrase “anarchist jurisdiction” is an oxymoronic invention of a moron. Anarchy can have no jurisdiction because anarchy recognizes no law. https://t.co/jwxhi4l2ZK
— Tor Ekeland (@TorEkelandPLLC) September 3, 2020
Democratic lawmakers and “anarchist jurisdiction” mayors said the memo was “plainly illegal.”
This order is plainly illegal. Portland is not a toy in Trump’s authoritarian playset. https://t.co/Scr17k4qy1
— Ron Wyden (@RonWyden) September 3, 2020
“Our cities, and the millions of Americans who we represent, are not President Trump’s political pawns. We are confronting unprecedented challenges—fighting back a pandemic and economic devastation without another stimulus.
— Mayor Ted Wheeler (@tedwheeler) September 3, 2020
President Trump needs to wake up to the reality facing our cities—and our entire country—and realize he is not above the law.”
— Mayor Ted Wheeler (@tedwheeler) September 3, 2020
Legal-focused journalists similarly dismissed the memo as a document that “might as well have been written in crayon.”
It'd be in my lane to write an explainer about the legal context of Trump's memo on purportedly restricting funding to "anarchist" cities like New York, except the White House didn't even bother to try to cite a legal basis. It's just the usual get-a-one-day-headline vacuousness. pic.twitter.com/hxlYFNgRh7
— Charlie Savage (@charlie_savage) September 3, 2020
This might as well have been written in crayon. What an absolutely stupid, wholly unenforceable bit of campaign propaganda. https://t.co/8uoNChHssv
— Radley Balko (@radleybalko) September 3, 2020
[image via SAUL LOEB/AFP via Getty Images]
Have a tip we should know? [email protected]