Judge blocks DHS from imposing conditions on federal disaster funding

SAN FRANCISCO (CN) — A federal judge on Friday blocked the Department of Homeland Security from withholding disaster preparedness grants from local governments that refuse to adhere to federal policy priorities.

“Defendants’ arguments here have been soundly rejected by courts around the country, which have found similar agency conditional funding schemes to be unconstitutional,” Senior U.S. District Judge William Orrick said.

“The message to the Executive Branch in these cases is consistent: no one is above the law, and the separation of powers between the three branches must be respected," he wrote. “I similarly hold that plaintiffs have sufficiently shown a likelihood of success on the merits: DHS and FEMA’s Discrimination and Executive Order conditions are ambiguous and violate fundamental principles of constitutional law.”

Cities and counties in California, Washington and Arizona sued the federal government on Sept. 30, claiming it threatened to withhold more than $350 million in emergency and disaster-preparedness grants unless they agreed to new conditions imposed by the Homeland Security Department and FEMA.

The lawsuit targets two requirements: a “discrimination condition” that bars grantees from promoting “DEI, DEIA, or discriminatory equity ideology” or engaging in “a discriminatory prohibited boycott,” and an “executive order condition” requiring compliance with unspecified grant-related executive orders.

In a 76-page opinion, Orrick found the discrimination condition inconsistent with established anti-discrimination law and so vague that local governments have no clear guidance on how to comply.

“Read as a whole, the discrimination condition requires that plaintiffs refrain from ‘advanc[ing] or promot[ing]’ DEI, DEIA, or discriminatory equity ideology in violation of federal anti-discrimination law. But the DHS does not explain how grantees could ‘advance or promote’ these ideologies, nor does it explain how these terms fit into current understandings of antidiscrimination law,” the Barack Obama appointee said.

Orrick also found that the executive order condition was ambiguous because there is no clear guidance on what “compliance” with the condition entails.

“Must plaintiffs comply with only those executive orders that focus exclusively on grants? Could the president ‘attach’ a sentence at the end of every executive order discussing grant funding, thus requiring plaintiffs to adhere to every order? What if the executive orders directly contradict Congress’s intent in passing a grant program? Or contain conditions enjoined as unconstitutional? Such questions, even if they do not appear on the face of the EO condition, raise concerns that render it impermissibly ambiguous,” he said.

The judge also recognized the harm the plaintiffs face in a “Catch-22” between accepting the government’s conditions or losing critical funding, writing that the plaintiff’s interest in keeping their communities safe “far exceeds” the government’s interests.

“As indicated above, plaintiffs represent over thirty million individuals, and their DHS and FEMA grants provide funding to support these disaster and public safety initiatives. Many of the plaintiffs would be unable to otherwise fund these programs without the grants,” he said.

In a statement to Courthouse News, San Francisco City Attorney David Chiu said that he appreciated the court’s ruling blocking “this unlawful overreach.”

“Emergency management is the backbone of safe and resilient communities, and threatening its funding puts real lives at risk. This funding means faster emergency response times, stronger regional coordination, and better protection for our residents during disasters and terrorist attacks. The federal government’s politically motivated grant conditions demonstrate both a disregard for our Constitution and the well-being of our residents,” he said.

Representatives for the DOJ declined to comment.

Follow @mhattridge_