Judge accuses Homeland Security of bullying states into accepting conditions to get FEMA money

A federal judge in Rhode Island on Tuesday accused the Trump administration of trying to “bully” states into accepting conditions that require them to cooperate on immigration enforcement actions to get disaster funding after he ruled earlier that those actions were unconstitutional.

U.S. District Judge William Smith, who was appointed by former Republican President George W. Bush, issued a summary judgment last month ruling that the Department of Homeland Security couldn’t impose the conditions.

Despite the September ruling, a coalition of 20 state Democratic attorneys general argued the agency still attached the conditions to the grants along with language suggesting they would apply if the case was “stayed, vacated, or extinguished.”

Smith ordered Homeland Security to permanently stop enforcing those conditions against plaintiff states. The judge also said the agency must amend documents to states within seven days to remove language related to complying with federal immigration law as well as the conditional language related to the ruling being stayed or vacated.

Smith accused the agency of doing exactly what his order forbids, adding that the “fig leaf conditional nature of the requirement makes little difference.”

“Defendants’ new condition is not a good faith effort to comply with the order,” Smith wrote. “It is a ham-handed attempt to bully the states into making promises they have no obligation to make at the risk of losing critical disaster and other funding already appropriated by Congress.”

In their complaint, the states argued that for decades they counted on federal funding to prepare for, respond to and recover from disasters. But they argued conditions put forward by the Trump administration requiring them to commit state resources to immigration enforcement put at risk funding for everything from mitigating earthquake and flood risks to managing active wildfires.

The Department of Homeland Security seeks “to upend this emergency management system, holding critical emergency preparedness and response funding hostage unless States promise to devote their scarce criminal enforcement resources, and other state agency resources, to the federal government’s own task of civil immigration enforcement beyond what state law allows,” the plaintiffs wrote.

They argued successfully that this not only was unconstitutional but that it violated the Administrative Procedure Act, a law that governs the process by which federal agencies develop and issue regulations.

Plaintiffs argued that the agency was simply cutting and pasting language that the judge had rejected as part of a condition to get grant funds. “Such relief is necessary to prevent defendants from coercing the States’ local jurisdictions to comply with unlawful conditions that are contrary to the States’ own decision making in this area,” they wrote.

The government had argued that the challenge was moot since it had already decided to exclude 12 of the 18 programs from having to comply with the immigration requirements. For the remaining programs, the government argued that this was a contract dispute that should be resolved in the Court of Federal Claims.

The government said the agency was well within its right to warn states of conditions, given it could see the ruling overturned on appeal. “Plaintiffs should not be allowed to prevent lawful enforcement at that point by anticipatorily preventing inclusion of the conditions within the grant terms,” the government wrote.