Eleven cities and counties from two states, ranging from a big city like Los Angeles to a small city in Oregon like Corvallis, come to federal court with pretty much the same complaint. This is something that should be looked into. It’s not just a case of law. It means that something about the way the federal government gives money touched a nerve that drew in cities and towns of all sizes and types.
U.S. District Judge William Orrick issued a preliminary injunction late Thursday night in this case. It was about a question that sounds silly but has real weight: can the executive branch put its own policy conditions on federal grant money that Congress already gave for certain purposes? Barack Obama chose Orrick, who is based in California, to answer that question. He said, “No, it probably can’t.”
The grants in question weren’t vague. They talked about police programs, being ready for terrorism, disaster and fire relief, flood aid, forensic science, crime victim services, and efforts to stop the trafficking of people. There are real programs that help real people. The part of Orrick’s ruling that seemed to bother him the most was the idea that any of those could lose money not because of poor performance or bad management, but because a city hadn’t agreed with the administration’s view on diversity and equity policies.
“What defendants seek to do likely violates the Constitution and the Administrative Procedures Act,” he said. The conditions that are against DEI either “have nothing to do with or contradict” what Congress meant when it gave these funds to be used. He pointed out that federal law often clearly directs grant money toward women and underserved communities—exactly the groups that the new rules seemed to be meant to keep from being considered.
It’s possible that the administration really thought these situations were within their power. Executive orders can affect a lot of people, and it’s never been clear where the line is between legal policy advice and coercing grantees, which is against the Constitution. But Orrick didn’t agree with the argument, and neither did anyone else. In a separate case brought by Seattle, Cleveland, Portland, and others, a federal judge in Seattle had already blocked similar conditions the week before. It’s getting harder and harder to ignore the pattern.
As more decisions are made, it seems like the administration didn’t realize how clear Congress had already been about these grant programs and how carefully judges would compare those congressional instructions to the new rules that were being put in place. Orrick wrote that the public interest also supported the injunction. He said that communities have a right to get the money that their federal taxes already paid for and that executive orders don’t quietly override programs that were passed by Congress.
The plaintiffs, which included cities and counties like Fresno, Santa Clara, Beaverton, and Stockton, as well as San Diego, Santa Barbara, and Los Angeles, said they had received, applied for, or planned to apply for the funding that was at issue. In some of these places, the stakes weren’t just hypothetical. Cities can’t just go find another source of money for things like disaster relief and reducing risks.
By the time the decision came out, lawyers for both sides had not said anything in public. But the injunction itself makes its point very clear. For now, those eleven cities and counties can still use their grants without having to agree to terms that a federal judge thought were unconstitutional. Is that still true after more appeals? We’ll see, but so far the courts have kept coming to the same conclusion.
