The U.S. Department of Justice Sept. 21 issued a list of “anarchist jurisdictions,” pursuant to an order from President Donald Trump to review federal funding for cities where violence or vandalism has occurred adjacent to protests.
If the Trump administration withholds federal funds from these jurisdictions based on the “anarchist” designation, that withholding of funds would violate the Constitution in at least two ways, says a Constitutional law expert at Washington University in St. Louis.
Below, Greg Magarian, the Thomas and Karole Greene Professor of Law, discusses why.
“First, the withholding of funds would violate the unconstitutional conditions doctrine. That doctrine, which the Supreme Court has developed in applying the Constitution’s spending clause, prohibits the federal government from conditioning funding for state or local governments on the state’s or municipality’s violation of people’s constitutional rights. In this instance, the federal government appears to be targeting jurisdictions that, in Trump’s and (Attorney General William) Barr’s view, have inadequately cracked down on Black Lives Matter protests. The ‘anarchist’ list doesn’t make clear exactly what the federal government believes the ‘anarchist jurisdictions’ should have done differently.
“However, the federal government’s own documented actions of having its agents indiscriminately beat protesters and arrest protesters without legal justification provides a likely baseline for what the Trump administration thinks the ‘anarchist’ cities should have done. Those actions by federal agents clearly violated the beaten and arrested protesters’ First and Fourth Amendment rights. Therefore, the ‘anarchist’ list appears to be aimed at withholding federal funds from jurisdictions because those jurisdictions failed to violate protesters’ First and Fourth Amendment rights. Predicating federal funding on rights violations is exactly what the unconstitutional conditions doctrine forbids.
“Second, the withholding of funds would directly violate the First Amendment rights of people in the ‘anarchist’ jurisdictions by punishing them for their (and others’) political speech. The Trump-Barr ‘anarchist’ list, in conjunction with prior public statements by both Trump and Barr, singles out jurisdictions with Democrat-controlled governments; punishes only violence that the administration blames (speciously) on a political movement, Black Lives Matter, that Trump and Barr have harshly criticized; and appears intended primarily as a political stunt to excite Trump’s far-right base in the immediate run-up to an election.
“All of these features of the list indicate that any withholding of federal funds from the ‘anarchist jurisdictions’ would amount to the government’s use of its power to punish its political opponents and to intimidate its critics into silence. A more blatant violation of the First Amendment is hard to imagine.
“In addition, the ‘anarchist jurisdictions’ list is just the latest in a long series of disturbing instances in which the Department of Justice under Barr has operated as, essentially, a political arm of the Trump administration and the Trump re-election campaign. The rule of law depends on the Department of Justice’s independence from political pressures. Under the ironic cover of preserving law and order, Barr is transforming the Department of Justice into an agency more suited to an autocracy than to a democracy. Given Trump’s and Barr’s contempt for the rule of law, their continuous assaults on Americans’ constitutional rights are becoming sadly routine and predictable.”