Trump admin asks Ninth Circuit to lift block on grant conditions

SEATTLE (CN) — In a bid to overturn a preliminary injunction blocking it from imposing grant conditions on local governments, the Trump administration told a Ninth Circuit panel on Monday was too broad and that federal agencies in fact had the authority to impose the conditions.

A coalition of local governments — including King County, Washington; San Francisco; Boston and New York City — sued last year, arguing that the U.S. Departments of Housing and Urban Development, Transportation and Health and Human Services imposed improper conditions on billions of dollars of grants.

The funding restrictions included using grant funds to promote “gender ideology,” to fund or promote elective abortions, to promote “illegal immigration” or to enable policies that shield noncitizen residents from deportation.

The lower court sided with the local governments, ruling that the Trump administration can’t impose “hotly contested political conditions” on grant funding already allocated by Congress. In the time since the August order, more local governments have joined the suit.

Appealing the order Monday, Jacob Roth, Justice Department attorney, said “The district court’s holding was much more categorical and the injunction was much broader. It said, ‘Nope, you can’t do this at all.'"

Specifically, the Trump administration argued that the Civil Rights Act authorized the agencies to impose its anti-discrimination conditions. As part of the requirement, local governments must certify their programs don’t promote diversity, equity and inclusion standards that violate federal anti-discrimination laws.

“If they violate the civil rights laws, it doesn’t matter if you call it DEI, it’s still illegal, and we’re paying attention to this, and this condition is designed to put them on notice that that’s the agency’s view, and they’re gonna hold them to it,” Roth said.

In the lower court, the local governments argued that the Trump administration would use the grant conditions to prohibit lawful conduct.

“That kind of speculation about how we might misapply civil rights laws in the future is not a basis for saying we don’t have statutory authority in the first place to enforce the civil rights laws,” Roth argued.

The Trump administration argued that the conditions were established to allow the agencies to carry out their goals effectively and efficiently, and that allowing the local governments to use funding on seemingly unrelated purposes contradicts those goals.

“These things are not germane to the program. They are not advancing the goals of the program. So please don’t spend this homelessness money on those things,” Roth said.

The local governments see it differently, arguing that the conditions overstep federal authority and serve only to advance President Donald Trump’s policy goals.

”We’re not making suggestions that these are just overbroad as to all programs; we have asked the court to look at these particular grant programs and decide whether or not these conditions are consistent with those grant programs as authorized by Congress,” said Paul Lawrence, attorney with Pacifica Law Group representing the local governments.

The local governments argue that none of the programs at issue reference immigration, abortion or gender ideology and that they shouldn’t be forced to use the government’s certification process to prove their funded programs comply.

“If you’re using the provisions that were under interim regulations, you would deem that an equivalent, and then you might be in a cat fight over whether it’s equivalent or not, but as long as it’s not mandated, that’s your objective, right?” asked U.S. Circuit Judge Mary McKeown, a Bill Clinton appointee. The local governments agreed.

But U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, noted he doesn’t see the harm in the requirement if the local governments are substantially complying with the requirements otherwise.

“The mandating something that Congress has specifically not authorized, which is the case here, is a violation of the separation of powers and a violation of exceeding statute of authority,” Lawrence responded. Further, the local governments argued they are harmed by being forced to choose between accepting unlawful conditions or risk losing billions in federal funding.

Turning to the details, Bumatay asked how many federally funded programs use the money to promote elective abortions.

“I don’t even know what promote elective abortions means, which is part of the problem; these are vague terms and nobody knows what that means,” Lawrence said.

The Ninth Circuit panel, which also included U.S. Circuit Judge Richard Paez, a Bill Clinton appointee, did not indicate when it would rule.