The Department of Justice on Monday designated New York City, Seattle and Portland, Ore., as jurisdictions that permit “anarchy, violence and destruction,” a distinction that the Trump administration hopes to use to strip those cities of federal funding.
But legal experts say the policy may amount to little more than an empty political threat.
The list of cities is a response to a Sept. 2 memorandum from the White House outlining a policy under which the Trump administration can decide to restrict federal grant funding. The memo states that violence and destruction have continued “unabated” in Portland, Seattle and New York due to failed leadership and disempowered police forces.
“We cannot allow federal tax dollars to be wasted when the safety of the citizenry hangs in the balance,” Attorney General William Barr said in a statement Monday. “It is my hope that the cities identified by the Department of Justice today will reverse course and become serious about performing the basic function of government and start protecting their own citizens.”
The proposal to deny those three cities federal funding is vaguely similar to Trump’s attempt to withhold funds from so-called sanctuary cities, jurisdictions that limit cooperation with federal agencies in the enforcement of immigration law. Courts have issued mixed decisions on whether such an action is legal.
But experts told Yahoo News this latest case is cut-and-dried, and say that Trump and Barr are applying arbitrary criteria to decide which cities the administration will deny funding.
“It’s clear that only the Congress has the power of the purse,” Harvard University law professor and leading constitutional scholar Laurence Tribe told Yahoo News. “Congress sets the conditions on which grants to states and grants to municipalities can be given and must be given. And the president has to follow those rules.”
Tribe said he would expect lower courts to come to this conclusion if Trump actually attempted to revoke federal funding. It’s unclear how exactly the administration plans to follow through.
“I think it’s just bluster. It’s just talk,” Tribe said.
The DOJ singled out Portland, New York City and Seattle for a myriad of issues affecting each city. New York City has been experiencing spikes in violent crime, while protests in Portland have devolved into dangerous riots. Amid ongoing demonstrations in Seattle, a group of protesters took control of an area near Seattle Police’s East Precinct, deemed the “Capitol Hill Organized Protest” zone, in June. At least two people have been shot in the area. President Trump has remained critical of these cities and their Democratic leadership.
Among the criteria for receiving an “anarchy” identification is refusing “law enforcement assistance” from the federal government and defunding police departments, according to the DOJ. All three cities have taken steps to redirect funding allocated for police departments to other programs.
In a joint statement shared with Yahoo News, the mayors of Portland, New York and Seattle denounced the prospect of losing federal tax dollars as an unlawful and blatantly political gesture.
“The President is playing cheap political games with Congressionally directed funds,” Portland Mayor Ted Wheeler, New York City Mayor Bill de Blasio and Seattle Mayor Jenny Durkan said. “Our cities are pushing forward after fighting back a pandemic and facing the worst financial crisis since the Great Depression, all despite recklessness and partisanship from the White House. What the Trump Administration is engaging in now is more of what we’ve seen all along: shirking responsibility and placing blame elsewhere to cover its failure.”
In a separate press conference held by de Blasio, his counsel said the city is prepared to fight the Trump administration in court if it moves ahead with withholding funding.
“Not only is it unconstitutional,” said James Johnson, corporation counsel for New York City, “the designation of anarchy doesn’t even pass the common-sense test. And if need be, we can send, in addition to our legal filings, a dictionary, because what we have in New York is not anarchy. What we have is a city moving forward under difficult circumstances, made more difficult because of the threats to withdraw federal funding.”
The U.S. Constitution allows Congress to offer federal funding to states and municipalities based on certain conditions. But in prior decisions, the U.S. Supreme Court has held that those conditions must be unambiguously established so that the states can knowingly accept or reject them.
“In general, the states have to have been given notice beforehand by whatever legislation is giving the federal money that it could be taken away,” Stanford law professor and constitutional law scholar Bernadette Meyler told Yahoo News. “So if they haven’t received that kind of notice under the legislation, then a retroactive effort to take away the money is generally not going to be considered constitutional,” she said.
The criteria detailed Monday by Barr, which includes “any factors the Attorney General deems appropriate,” seems to run afoul of the government’s duty to give states sufficient notice of what conditions it must meet to receive federal money.
“The vagueness of the language and the breadth of it,” Meyler said, “allows for completely arbitrary executive decision making.”
Thumbnail credit: Paula Bronstein/AP
Read more from Yahoo News: