President Donald Trump threatened—again—to withhold federal dollars from California as the state copes with the aftermath of wildfires. But the president’s action is on shaky legal ground.
Trump’s tweet on Wednesday followed Gov. Gavin Newsom’s request that the federal government provide new funding for forest management.
There are clear guidelines governing how federal funding is administered and under what circumstances it can be cut off.
Trump suggested that poor forest management is to blame for California’s deadly wildfires. He said he’s ordered the Federal Emergency Management Agency to stop giving the state money “unless they get their act together.”
Trump tweeted, “Billions of dollars are sent to the State of California for Forest fires that, with proper Forest Management, would never happen. Unless they get their act together, which is unlikely, I have ordered FEMA to send no more money. It is a disgraceful situation in lives & money!”
This is the fourth time Trump has issued this threat.
He made similar comments on Nov. 10, 2018 during the Camp Fire, and previously tweeted threats on Oct. 17 and 23.
Fortunately for California, Trump’s threats are empty—so far.
That’s because there are clear guidelines governing how federal funding is administered and under what circumstances it can be cut off.
These guidelines stem from a 1987 Supreme Court decision that was followed last July, when the lower courts stopped Trump from cutting off funds to California over the state’s refusal to cooperate on his border wall.
Unlike Trump’s other threats, the January 2017 sanctuary threat came in the form of an executive order.
In February 2018, the president told California’s congressional delegation that if it didn’t approve money for a border wall, then California would not be included in the project if it ultimately went forward.
That same month, Trump threated to pull the Immigration and Customs Enforcement out of California.
“We’re getting no help from the state of California. Frankly, if I wanted to pull our people from California you would have a crime nest like you’ve never seen in California. All I’d have to do is say ‘ICE, Border Patrol, leave California alone,’” Trump said.
Trump’s claim that California is uncooperative in enforcing his “zero tolerance” immigration policy stems from his first threat to California, that of cutting off federal funds to California (and other states) that pass “sanctuary” legislation prohibiting state or local law enforcement from cooperating with ICE or Border Control in hunting down and detaining immigrants. Unlike Trump’s other threats, the January 2017 sanctuary threat came in the form of an executive order, Enhancing Public Safety in the Interior of the United States.
Trump explained his threat to Fox’s Bill O’Reilly in a February 2017 interview, “If we have to, we’ll defund. We give tremendous amounts of money to California. … California is in many ways is out of control, as you know. … If they’re going to have sanctuary cities, we may have to do that. Certainly that would be a weapon.”
Two months after Trump’s executive order, California counties San Francisco and Santa Clara filed suit against it. In September 2017, a federal court judge in Illinois issued a preliminary injunction halting the order. In November, U.S. District Court Judge William Orrick ruled for San Francisco and Santa Clara, striking the order down. Trump ordered the Justice Department to appeal the decision.
The court placed restrictions on how the feds could use funding to influence states.
In July 2018, the 9th Circuit Court of Appeals ruled that Trump’s executive order was unconstitutional, based on the 1987 Supreme Court decision South Dakota v. Dole. In 1984, Congress passed the National Minimum Drinking Age Act, which directed states to up their drinking age to 21 or face a 10 percent cut in federal transportation funding. South Dakota, which had a drinking age of 19, sued the federal government, naming Transportation Secretary Elizabeth Dole as defendant.
The court ruled in favor of the federal government. However, the court placed restrictions on how the feds could use funding to influence states. The five restrictions are:
The exercise of spending power must be in pursuit of “the general welfare.”
Conditions on funding must be unambiguous, the States entering into agreements “knowingly, cognizant of the consequences of their participation.”
Conditions must be related “to the federal interest in particular national projects or programs.”
“[T]he power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”
The conditions cannot be “so coercive as to pass the point at which ‘pressure turns into compulsion.’”
While Trump cannot halt money already approved and in the pipeline from being spent, he can simply refuse to request federal disaster aid from Congress.
In upholding Orrick’s ruling on Trump’s executive order, the 9th Circuit not only cited Dole—particularly the federal government proposing “unambiguous” conditions on funding prior to acceptance—but also noted the constitutional separation of powers, specifically the “Spending Clause,” which delegates funding decisions to Congress.
The Dole and the 9th Circuit decisions prevent Trump from yanking federal funding from California for “gross mismanagement of the [federal] forests.”
However, there are other options that Trump can and has tried to use to punish California via federal funding.
As Capitol Weekly reported in December 2018, while Trump cannot halt money already approved and in the pipeline from being spent, he can simply refuse to request federal disaster aid from Congress. He can also create or alter rules for federal programs and services.
But halting money already budgeted for California is a no-go.
And critics say the president’s use of Twitter to make threats and declare complex federal policy changes only spurs confusion and fear.
As Chris Hoene, executive director of the California Budget & Policy Center, noted in our earlier story, “Twitter fodder is less about reality than it is about creating tension. There are more rules in place than 280 characters can do justice.”