Document Type

Article

Publication Date

2023

Abstract

High-profile controversies in each of the last several administrations have involved the extent of Executive Branch control over federal grants. These challenges were particularly pronounced during the Trump Administration, when it seemed that each month brought a new grant-related controversy, from the opening week’s attempts to withhold funding from sanctuary cities to the last months’ effort to deny funding to “anarchist” jurisdictions. The aftermath of the Trump Administration thus provides an important opportunity to assess the bounds of Executive Branch control over federal grants writ large. In doing so, this Article makes three contributions. First, as a descriptive matter, it maps the terrain of Executive Branch control over federal grants, illustrating how this control operates at three distinct moments in the grant lifecycle: the policy stage, the award stage, and the enforcement stage. Second, as a normative matter, the Article argues that for the most part, robust Executive Branch control over federal grants in all three of these arenas is good, against a current trend seeking to reduce Executive Branch control to transmission-belt status. At the same time, the award stage includes dangerous opportunities to transform neutral awards into partisan pork, while the enforcement stage includes dangerous opportunities to transform neutral enforcement into political retribution. Third, through a thick case study of the Trump Administration’s engagement with federal grants, the Article demonstrates what happens when a boundary-pushing President is confronted with the core framework for Executive Branch control of federal grants. The case study reveals that courts and norms do a good job of cabining abuses in the policy arena, but that courts, norms, and politics struggle with cabining abuses in the arenas of pork and punishment. The outsize attention paid to the Trump Administration’s efforts to withhold funding from sanctuary cities and anarchist jurisdictions thus misses the most dangerous opportunities for Executive Branch abuse of federal grants. These opportunities can and should be limited through reforms to grant law in OMB and Congress rather than through doctrinal changes.

Publication Citation

Ohio State Law Journal, Vol. 83, Issue 6, Pp. 1113.

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