Congratulations to White House Press Secretary Karoline Leavitt, whose tweets made it into yet another legal filing yesterday.
Last week, Rhode Island federal Judge John McConnell issued a TRO on Trump’s anti-woke spending cuts, citing Leavitt’s post as evidence that the White House intended to moot the pending litigation by rescinding the implementation memo from the Office of Management and Budget, while still freezing funds. That order applied only to funding for states, in response to a complaint filed by 20 blue state AGs along with the District of Columbia. (Apparently red states are only delighted to lose access to Medicaid portals.)
And last night, Judge Loren Alikhan in DC cited Leavitt again in an order granting a TRO to nonprofits seeking to ensure access to government funds.
“Within hours of OMB’s rescission, White House Press Secretary Leavitt announced that the rescission was to have no tangible effect on ‘the federal funding freeze,’” the court wrote, noting that the press secretary’s tweet “unambiguously reflects that the rescission was in direct response to this court’s issuance of an administrative stay on January 28.”
By rescinding the memorandum that announced the freeze, but “NOT . . . the federal funding freeze” itself, id., it appears that OMB sought to overcome a judicially imposed obstacle without actually ceasing the challenged conduct. The court can think of few things more disingenuous. Preventing a defendant from evading judicial review under such false pretenses is precisely why the voluntary cessation doctrine exists. The rescission, if it can be called that, appears to be nothing more than a thinly veiled attempt to prevent this court from granting relief.
The government pinky swore that the case became moot when the OMB memo was withdrawn, but Judge Alikhan noted that multiple of the plaintiffs were still running into delays and denials when seeking to access grant funds and reimbursements. But perhaps more
“Defendants’ plea for a presumption of good faith rings hollow when their own actions contradict their representations,” she scoffed.
But perhaps more ominously for the government’s claims, she seemed to reject the very premise of a presidential freeze on congressionally-allocated funds, observing that “Defendants’ actions appear to suffer from infirmities of a constitutional magnitude. The appropriation of the government’s resources is reserved for Congress, not the Executive Branch.” The court suggested that the Trump administration’s effort to effectively edit federal spending by refusing to obligate funds if they don’t accord with the president’s priorities — or if they reward people he doesn’t like — violates the Appropriations Clause as well as multiple federal statutes, including the Impoundment Act of 1974 and the Administrative Procedures Act.
Defendants’ actions in this case potentially run roughshod over a “bulwark of the Constitution” by interfering with Congress’s appropriation of federal funds. U.S. Dep’t of the Navy, 665 F.3d at 1347. OMB ordered a nationwide freeze on pre-existing financial commitments without considering any of the specifics of the individual loans, grants, or funds. It did not indicate when that freeze would end (if it was to end at all). And it attempted to wrest the power of the purse away from the only branch of government entitled to wield it. If Defendants’ actions violated the separation of powers, that would certainly be arbitrary and capricious under the APA.
It promises to be a knock-down-drag-out fight which is also very, very stupid. Luckily it’s only the future of the republic at stake!
National Council of Nonprofits v. Office of Management and Budget [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
The post White House Press Sec Scores Another Own Goal In Funding F*cktussle appeared first on Above the Law.
Congratulations to White House Press Secretary Karoline Leavitt, whose tweets made it into yet another legal filing yesterday.
Last week, Rhode Island federal Judge John McConnell issued a TRO on Trump’s anti-woke spending cuts, citing Leavitt’s post as evidence that the White House intended to moot the pending litigation by rescinding the implementation memo from the Office of Management and Budget, while still freezing funds. That order applied only to funding for states, in response to a complaint filed by 20 blue state AGs along with the District of Columbia. (Apparently red states are only delighted to lose access to Medicaid portals.)
And last night, Judge Loren Alikhan in DC cited Leavitt again in an order granting a TRO to nonprofits seeking to ensure access to government funds.
“Within hours of OMB’s rescission, White House Press Secretary Leavitt announced that the rescission was to have no tangible effect on ‘the federal funding freeze,’” the court wrote, noting that the press secretary’s tweet “unambiguously reflects that the rescission was in direct response to this court’s issuance of an administrative stay on January 28.”
By rescinding the memorandum that announced the freeze, but “NOT . . . the federal funding freeze” itself, id., it appears that OMB sought to overcome a judicially imposed obstacle without actually ceasing the challenged conduct. The court can think of few things more disingenuous. Preventing a defendant from evading judicial review under such false pretenses is precisely why the voluntary cessation doctrine exists. The rescission, if it can be called that, appears to be nothing more than a thinly veiled attempt to prevent this court from granting relief.
The government pinky swore that the case became moot when the OMB memo was withdrawn, but Judge Alikhan noted that multiple of the plaintiffs were still running into delays and denials when seeking to access grant funds and reimbursements. But perhaps more
“Defendants’ plea for a presumption of good faith rings hollow when their own actions contradict their representations,” she scoffed.
But perhaps more ominously for the government’s claims, she seemed to reject the very premise of a presidential freeze on congressionally-allocated funds, observing that “Defendants’ actions appear to suffer from infirmities of a constitutional magnitude. The appropriation of the government’s resources is reserved for Congress, not the Executive Branch.” The court suggested that the Trump administration’s effort to effectively edit federal spending by refusing to obligate funds if they don’t accord with the president’s priorities — or if they reward people he doesn’t like — violates the Appropriations Clause as well as multiple federal statutes, including the Impoundment Act of 1974 and the Administrative Procedures Act.
Defendants’ actions in this case potentially run roughshod over a “bulwark of the Constitution” by interfering with Congress’s appropriation of federal funds. U.S. Dep’t of the Navy, 665 F.3d at 1347. OMB ordered a nationwide freeze on pre-existing financial commitments without considering any of the specifics of the individual loans, grants, or funds. It did not indicate when that freeze would end (if it was to end at all). And it attempted to wrest the power of the purse away from the only branch of government entitled to wield it. If Defendants’ actions violated the separation of powers, that would certainly be arbitrary and capricious under the APA.
It promises to be a knock-down-drag-out fight which is also very, very stupid. Luckily it’s only the future of the republic at stake!
National Council of Nonprofits v. Office of Management and Budget [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
