Congratulations
to
White
House
Press
Secretary
Karoline
Leavitt,
whose
tweets
made
it
into
yet
another
legal
filing
yesterday.
Last
week,
Rhode
Island
federal
Judge
John
McConnell
issued
a
TRO
on
Trump’s
anti-woke
spending
cuts,
citing
Leavitt’s
post
as
evidence
that
the
White
House
intended
to
moot
the
pending
litigation
by
rescinding
the
implementation
memo
from
the
Office
of
Management
and
Budget,
while
still
freezing
funds.
That
order
applied
only
to
funding
for
states,
in
response
to
a
complaint
filed
by
20
blue
state
AGs
along
with
the
District
of
Columbia.
(Apparently
red
states
are
only
delighted
to
lose
access
to
Medicaid
portals.)
And
last
night,
Judge
Loren
Alikhan
in
DC
cited
Leavitt
again
in
an
order
granting
a
TRO
to
nonprofits
seeking
to
ensure
access
to
government
funds.
“Within
hours
of
OMB’s
rescission,
White
House
Press
Secretary
Leavitt
announced
that
the
rescission
was
to
have
no
tangible
effect
on
‘the
federal
funding
freeze,’”
the
court
wrote,
noting
that
the
press
secretary’s
tweet
“unambiguously
reflects
that
the
rescission
was
in
direct
response
to
this
court’s
issuance
of
an
administrative
stay
on
January
28.”
By
rescinding
the
memorandum
that
announced
the
freeze,
but
“NOT
.
.
.
the
federal
funding
freeze”
itself,
id.,
it
appears
that
OMB
sought
to
overcome
a
judicially
imposed
obstacle
without
actually
ceasing
the
challenged
conduct.
The
court
can
think
of
few
things
more
disingenuous.
Preventing
a
defendant
from
evading
judicial
review
under
such
false
pretenses
is
precisely
why
the
voluntary
cessation
doctrine
exists.
The
rescission,
if
it
can
be
called
that,
appears
to
be
nothing
more
than
a
thinly
veiled
attempt
to
prevent
this
court
from
granting
relief.
The
government
pinky
swore
that
the
case
became
moot
when
the
OMB
memo
was
withdrawn,
but
Judge
Alikhan
noted
that
multiple
of
the
plaintiffs
were
still
running
into
delays
and
denials
when
seeking
to
access
grant
funds
and
reimbursements.
But
perhaps
more
“Defendants’
plea
for
a
presumption
of
good
faith
rings
hollow
when
their
own
actions
contradict
their
representations,”
she
scoffed.
But
perhaps
more
ominously
for
the
government’s
claims,
she
seemed
to
reject
the
very
premise
of
a
presidential
freeze
on
congressionally-allocated
funds,
observing
that
“Defendants’
actions
appear
to
suffer
from
infirmities
of
a
constitutional
magnitude.
The
appropriation
of
the
government’s
resources
is
reserved
for
Congress,
not
the
Executive
Branch.”
The
court
suggested
that
the
Trump
administration’s
effort
to
effectively
edit
federal
spending
by
refusing
to
obligate
funds
if
they
don’t
accord
with
the
president’s
priorities
—
or
if
they
reward
people
he
doesn’t
like
—
violates
the
Appropriations
Clause
as
well
as
multiple
federal
statutes,
including
the
Impoundment
Act
of
1974
and
the
Administrative
Procedures
Act.
Defendants’
actions
in
this
case
potentially
run
roughshod
over
a
“bulwark
of
the
Constitution”
by
interfering
with
Congress’s
appropriation
of
federal
funds.
U.S.
Dep’t
of
the
Navy,
665
F.3d
at
1347.
OMB
ordered
a
nationwide
freeze
on
pre-existing
financial
commitments
without
considering
any
of
the
specifics
of
the
individual
loans,
grants,
or
funds.
It
did
not
indicate
when
that
freeze
would
end
(if
it
was
to
end
at
all).
And
it
attempted
to
wrest
the
power
of
the
purse
away
from
the
only
branch
of
government
entitled
to
wield
it.
If
Defendants’
actions
violated
the
separation
of
powers,
that
would
certainly
be
arbitrary
and
capricious
under
the
APA.
It
promises
to
be
a
knock-down-drag-out
fight
which
is
also
very,
very
stupid.
Luckily
it’s
only
the
future
of
the
republic
at
stake!
National
Council
of
Nonprofits
v.
Office
of
Management
and
Budget
[Docket
via
Court
Listener]
Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.