– September 11, 2020

On September 2, President Donald Trump ordered the federal government to defund or disfavor “anarchist jurisdictions”—Seattle, Portland, New York City, the District of Columbia, and more—to the fullest extent of the law. If agencies act before the September 30 close of the fiscal year, they can keep federal programs from putting people at risk in the coming months. Otherwise, agencies would have to claw back the money or wait until next year when the position of these jurisdictions may be quite different.

In general, I am skeptical of government programs in the first place, but it is unlawful to leave large amounts of Congressional appropriations unspent. We are not talking about an anarchist utopia where private policing has taken the place of government police. These cities are dangerous because each government has established a monopoly on the legal use of force, but they are failing to use it effectively. A program that operates in such a jurisdiction puts its recipients at risk.

The President has put the Office of Management and Budget (OMB) in charge of executing his order. Therefore, OMB should instruct all agencies to immediately reevaluate every discretionary grant program. Evaluation of grant proposals may continue, but agency heads should not approve any slate of grantees until the government has determined whether each applicant’s project is in a safe enough jurisdiction. Any applicant in an unsafe city, even if it would have made the cut, should be passed over.

Recalling money would be unpopular and may be legally problematic. Grantees rely on agencies’ promises of funding. Even so, the President has ordered action to the fullest extent of the law. If an agency has already announced a slate of successful applicants, but money has not yet gone out, the agency’s legal staff should determine what is lawful to do. Now that executive intent is clear, it would be unethical to let any grant slates proceed without acting to keep people safe.

It is important to remember that these are discretionary programs. Agency heads normally have the authority and flexibility to make unusual, even unprecedented, choices with federal dollars. For the Department of Education (ED), one relevant statute is 20 U.S.C. 1221e–3, which authorizes the Secretary of Education to issue, rescind, and amend rules and regulations governing the department’s programs.

Another option is to require all grantees in dangerous jurisdictions to submit acceptable mitigation plans in the name of safety. If New York or D.C. wants to run a federally-supported project where protesters have broken windows or set fires, it ought to promise that it will actually use its police power when needed to keep people safe. If not, the money should go somewhere else.

It is unclear how many grant competitions remain to be adjudicated at ED and other agencies, or how much money is at stake. But when schools, colleges, corporations, mayors, and governors say that “health and safety are our highest priorities,” we should take them at their word. None of them should make any fuss when the federal government withholds funding in the name of health and safety. Otherwise, their statements about their priorities would reek of hypocrisy.

Adam Kissel

Adam Kissel

Adam Kissel was deputy assistant secretary for higher-education programs in the U.S. Education Department, 2017–18. Adam was vice president and defense director for the Foundation for Individual Rights in Education for five years. He graduated from Harvard University and from the University of Chicago, where he served as Student Liaison to the Board of Trustees and earned a master’s degree from the Committee on Social Thought. His academic interests include the history and theory of liberal education, academic freedom, and rhetoric, and rhetoric’s relationship with philosophy.

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