Two weeks ago, a federal judge in San Francisco temporarily blocked the Trump Administration from enforcing the President’s Executive Order (EO) on “Sanctuary Jurisdictions.” The EO proposes to cut off federal funds from these Jurisdictions, mostly cities and counties. Attorney General Jeff Sessions says the Justice Department will continue to litigate the matter, so an appeal of the judge’s order appears likely.
Regardless of the outcome of the litigation, there is very little to stop the Administration from trying other avenues to use federal grant programs as a bludgeon to force localities to do what Washington wants. For example, just last month, the Justice Department sent letters to at least nine cities issuing an ultimatum: cooperate with federal immigration authorities or lose federal funding for law enforcement. The letter demands that localities have their chief lawyer certify by June 30 that they are abiding by 8 USC Section 1373 which is a federal law prohibiting cities, states and counties from preventing their employees from talking with federal immigration officials. The letter cites certifications of compliance with all federal laws that the cities made when they applied for funding under one of the Justice Department’s grant programs to aid law enforcement.
This pattern of moving to enforcement activities after losing a political battle is all too familiar to those that have practiced in this field for some years. A President doesn’t get what he wants, so his Administration turns to audits and reviews. Whether this type of thing is coming or not, all jurisdictions should focus on three critical steps to remain in compliance with the terms and conditions of their grant awards. Compliant grantees can weather whatever political winds are blowing.
Determine precisely what you agreed to.
Every grant has strings attached, including certifications with a host of laws and, in the case of DOJ grants, certification of compliance with Section 1373 requiring city officials to talk to ICE. Before you accept a federal award, you should analyze whether it conflicts with your local laws. Even in the absence of a conflict, how will you meet your grantee’s responsibility to demonstrate compliance with all grant conditions?
Consider your documentation.
Have you created an audit trail that will prove compliance to auditors years after the work is done? Can you show that federal dollars were exclusively spent on grant activities? If not, be prepared to pay back funds.
Recognize that, sometimes, you have to litigate.
Despite what the Administration appears to think, grants cannot be used to achieve policy goals unrelated to the purpose of those grants. The judge in San Francisco was clear on this point, and correctly so in my opinion. Congress, not the President, determines the purpose of federal grant programs. In the current contested case, the Administration’s threat to withhold public health grants in order to achieve immigration priorities is unconstitutional.
If you have questions about how to ensure that you are in compliance with the terms and conditions of your federal grant, or if you wish to discuss the Executive Order, please contact Ted Waters, Managing Partner at Feldesman Tucker Leifer Fidell LLP, www.ftlf.com, or 202-466-8960.