Cities, counties win second round in fight over Trump-imposed grant conditions

SEATTLE (CN) — In a second win for the coalition of cities and counties opposing a series of grant conditions they say are President Donald Trump’s way of coercing them into adopting his policy agenda, a federal judge indicated she would continue to block the government from enforcing the conditions.

U.S. District Judge Barbara Rothstein, a Jimmy Carter appointee, extended the temporary restraining order she issued two weeks ago and told the parties a preliminary injunction will be released soon.

The plaintiffs — which include King, Pierce and Snohomish counties in Washington state, as well as San Francisco and Santa Clara counties in California and the cities of Boston, Columbus and New York — all received grants from the Department of Housing and Urban Development, but objected to a series of new conditions.

The conditions include agreeing not to use funds in a way that promotes illegal immigration, “gender ideology” or elective abortion.

“It still remains clear that the grant conditions at issue have nothing to do with the programs being funded, nor are they authorized by Congress,” said Paul Lawrence, attorney with the Seattle-based Pacifica Law Group representing the cities and counties.

He also argued that the government has resisted adhering to the court order.

“Defendants, despite the [temporary restraining order], have doubled down on their efforts to enforce the grant conditions at issue,” Lawrence said. For instance, the government sent out the same disputed conditions even after the temporary restraining order barred it from enforcing them, Lawrence argued.

The government refuted the notion, arguing that it has followed the order.

“Nowhere in the [temporary restraining order] did the court order HUD to make grant funds available in the absence of an executed grant agreement,” Brian Kipnis with the U.S. Attorney’s Office said. “And nowhere in the [temporary restraining order] did the court require HUD to accept grant agreements where plaintiffs had unilaterally stricken terms and conditions from proposed grant agreements as tendered to them.”

“I’m puzzled by what you just said,” Rothstein remarked, questioning why the government didn’t accept the stricken agreement if the court had stricken the conditions within the order.

Kipnis explained that the government couldn’t accept an altered grant agreement because it would bind the government to those terms even if the government came out victorious in the case. The government isn’t enforcing the grant conditions even though they still appear in grant agreements, Kipnis said.

“Nobody is not getting a grant because of those conditions,” Kipnis said. He also reignited the argument that the plaintiffs are precluded from bringing their claims under anything but the Tucker Act — which allows for lawsuits against the federal government for monetary damages — arguing that the case is inherently a contract dispute.

But Rothstein pushed back, noting that the cities and counties aren’t asking for a release of funds and are only seeking injunctive relief at this point.

“Without the grant agreements, the plaintiffs have nothing to complain about,” Kipnis said.

“And without a statute, Mr. Kipnis, they wouldn’t have a grant agreement,” Rothstein responded. “This all originated with Congress passing a statute authorizing the funds, right?”

Kipnis continued to assert that the challenge falls under the Tucker Act, and argued that even if it didn’t, the plaintiffs don’t have a strong case.

“HUD should be permitted to condition its grants in these ways so that, for example, subsidized housing is not taken up by persons not lawfully in the United States,” Kipnis said.

The local governments asked Rothstein to be explicit in the preliminary injunction because the government will find loopholes.

“We can’t be in a situation here each time they come back with a slightly different interpretation or slightly different grant condition and have to come back before this court for enforcement of the injunction,” Lawrence said.

After Rothstein indicated she would rule in favor of the local governments, Lawrence filed an amended complaint adding 23 additional cities and counties experiencing the same trouble with grant funding.