Trump’s Threats to Withhold Disaster Relief Undermine Federalism Principles 

This op-ed is the first in a series on state and local law issues by contributors to SLoG Law Blog, an online publication devoted to state and local law issues.

As fires burned in Los Angeles this year — in what was possibly the most extensive and expensive natural disaster in U.S. history — President Donald Trump made a stunning statement: he said he would not allow disaster aid to flow unless California enacted voter ID laws, a condition completely unrelated to rebuilding.

This quid pro quo approach to disaster relief is unprecedented. For decades, under both Republican and Democratic presidents, the system consistently integrated state and local response with federal assistance — with the federal management role always remaining supplemental. This structure is federalism in action.

The administration’s threats also disregard doctrines developed by the Supreme Court in the 1980s and 90s under Chief Justice William Rehnquist to prevent federal overreach into state matters. The Rehnquist Court reinvigorated the 10th Amendment, which reserves for the states any powers not explicitly given to the federal government. Signature decisions of that period limited Congress’s ability to condition spending to nudge state policy and commandeer state personnel to fulfill federal mandates. The philosophy behind those rulings even gave rise to a new organization — the Federalist Society — which included in its mission returning power to the states on an array of issues.

The dismantling of the disaster response framework during the Los Angeles fires provides a good case study on how the concentration of executive power in the White House will undermine critical programs that have served red and blue states at their darkest moments.

History and Structure of U.S. Disaster Response

To see how the integration of federal, state, and local disaster response is federalism at its best, it is important to understand how and why the current federal disaster management system was created in the first place.

Early federal disaster relief coordination was formalized during the Nixon administration in the Disaster Relief Acts Amendments of 1974, marking the first authorization of direct disbursement of federal aid to individuals and households after a series of devastating floods and tornadoes in 1973 and 1974.

In 1979, a nuclear reactor in Pennsylvania experienced a partial meltdown, releasing radioactive material into the surrounding environment. The accident, known as the Three Mile Island disaster, remains the worst commercial nuclear disaster in the country’s history. In its aftermath, President Jimmy Carter signed an executive order that established the Federal Emergency Management Agency (FEMA), centralizing control of federal response in one agency with 10 regional offices located throughout the country — and changing the landscape of federal disaster relief.

Almost a decade later, Congress passed the Robert A. Stafford Act of 1988 establishing the current protocols for disaster declarations and setting up the federal Disaster Relief Fund, the main source of federal emergency disaster relief. Money from the fund is made available by presidential declaration when local and state governments are overwhelmed by a disaster or emergency event. Under the Stafford Act, a president may declare a situation to be a major disaster, emergency, or fire management condition. These features ensure that the state take on as much financial and personnel burden as it has capacity to provide. The federal government then backfills with grants, short-term personnel deployment, long-term assistance with recovery, and measures to mitigate further disasters.

When Congress established the Department of Homeland Security in 2002, FEMA was made part of the new department, where it has resided ever since.

This emergency response structure intentionally balances local control with accountability for expenditure of federal disaster funds. The federal agency exercises some funding and management discipline over governors and local officials, who otherwise could allocate assistance based on considerations of partisanship or to bolster incumbent officials. At the same time, integration of local and state officials allows federal assets to be deployed more efficiently.

Most disaster response is done by local and state personnel. Federal employees provide additional technical assistance and other states provide mutual aid. In the terminology of disaster management experts, it is a whole-of-government response. Federal employees who are surged into communities are not there past the point of need. They deploy and then leave. And because FEMA is organized by region, most emergency corps members are local, within a four- or five-state region.

With firefighters still working in late January to contain the Los Angeles blazes, Trump said that disaster relief should fall primarily to the states. “The state should fix this,” he remarked. The requirement that states co-pay, of course, is already part of the law. The default for federal funding in an emergency is a cost-share formula. The federal government usually picks up 75 percent of public assistance and hazard mitigation grants, and the state 25 percent. In costly disasters, the federal share may be increased or the state share zeroed. Because of the scale of the California fires, then-President Joseph Biden’s January 8 declaration of a major disaster eliminated the state share for the first 90 days of the disaster. Those kinds of adjustments to the cost-sharing formula are fairly typical. For example, the federal share was increased during the Covid-19 pandemic to 90 percent to account for challenges to state budgets.

Trump also threatened to scrap FEMA altogether, though FEMA cannot be eliminated without congressional action. Could the disaster response system be better? Of course. That would be a productive direction for oversight by Congress.

Coordination of response at the local state and federal level is a core feature of cooperative federalism. If you endorse federalism, as conservatives have historically done, integrated response is for you.

When Can Congress Condition Emergency Funds?

Trump’s demand for voter ID laws was not the only condition he threatened to attach to federal relief for the Los Angeles fires. During the first few days of his second administration, Trump stated that money would only be available if the state allowed FEMA to take over its water management policy, while simultaneously arguing that FEMA should be dissolved. He then ordered the Army Corps of Engineers to release millions of gallons of water from dams in California’s Central Valley — none of which went to Los Angeles. In so doing, he overrode water operations and environmental rules, over strenuous objection by state water officials. In February, the administration renewed threats to withhold ongoing aid to help Los Angeles recover, with a Trump aide suggesting funds will hinge on conditions like dismantling California regulation of development in the state’s coastal zones.

There are two obvious constitutional problems with Trump’s reaction to the Los Angeles fires. The first is that he is asserting powers to condition spending that belong to Congress; the second is that even Congress cannot attach the kind of conditions that he would like. Let’s examine the second one first.

Could Congress pass a law conditioning disaster relief on, to use Trump’s example, a state passing a voter ID law? Such legislation would likely run afoul of the conditional spending doctrine. There are several reasons, but the most important is that conditions on spending must have a nexus to the purpose of the spending.

There are two leading cases on conditional spending. In South Dakota v. Dole, the Supreme Court considered whether Congress could withhold federal highway aid from states that allowed people under 21 to drink alcohol. Congress could not regulate directly, because the repeal of Prohibition left the regulation of alcohol solely to the states. The Court noted that Congress may attach conditions to the receipt of federal funds but emphasized that any spending sanction must promote “the general welfare,” must be related to a “national concern,” and must be unambiguous so that states knowingly turn down any conditioned funds. The spending must also be related to the policy goal — here, safer highways. The Court held there was enough of a nexus to permit the condition; the lack of uniformity in drinking ages created an incentive for young people to drive to states where the drinking age was lower, drink, and drive home intoxicated.

But as Justices Sandra Day O’Connor and William Brennan observed in dissent, to prevent federal overreach, or backdooring otherwise unconstitutional federal regulation, the nexus cannot be specious. Voter ID laws are unrelated to the Los Angeles fires, so the condition, even if imposed by Congress, would fail the Dole test.

Dole is also instructive regarding the scale to which conditional spending can be applied. It involved 5 percent of federal highway spending — which left the states with meaningful choice as to whether to accept or reject the program that came with conditions. But in National Federation of Independent Business v. Sebelius, a case considering the constitutionality of the Affordable Care Act’s requirement that states expand Medicaid coverage in order to continue to qualify for federal Medicaid funds, the Court elaborated: since the challenged provision imperiled up to 30 percent of state overall budgets, an sum no state could risk losing, it amounted to what the plurality opinion by Chief Justice John Roberts termed “a gun to the head.”

While Congress could pass new disaster relief statutes conditioning funding on some set of practices, these cases suggest those conditions would have to be related to the goals of recovering from a disaster and could not imperil the entirety of the funds.

Under the anti-commandeering doctrine, meanwhile, Congress also cannot require a state to expend its own money or use its own personnel to carry out federal policy priorities. In Printz v. United States, the Supreme Court held that the federal government could not compel a state’s chief law enforcement officer to participate in a federal gun registration program. This does not mean that the state officials cannot voluntarily cooperate in federal programs; they do in many states. We have seen this, most notably, in recent immigration enforcement efforts in Florida and Texas. The key point is that, as a 10th Amendment matter, cooperation cannot be forced.

The design of federal disaster aid recognizes that the financial capacity of a state to respond to a catastrophic disaster is limited. Somebody is going to have to pay to rebuild Los Angeles and the other fire-ravaged communities in California. If the federal government does not shoulder its share, California will be forced to spend state funds on rebuilding instead of other priorities — amounting to commandeering of its spending.

Can the President Refuse to Spend Funds Appropriated by Congress for Disaster Aid?

If Congress could not impose conditions unrelated to the spending on federal disaster aid that Trump has mentioned, it is doubly true that the president may not. Such a move would violate the separation of powers.

Of course, the language of the Stafford Act grants a president discretion over when to declare a major disaster, providing that he “may” do so. So, as a purely linguistic matter, can Trump refuse to make a declaration for the Los Angeles fires?

Again, no — Biden already made such a declaration before Trump took office. That triggered the flow of compensation to the state for money it was expending on disaster response from the federal Disaster Relief Fund. The money has been appropriated by Congress, augmenting $2.5 billion California had already set aside as its share. And Trump has acknowledged that the fires are catastrophic. If that is so, then there is no discretion to halt aid for disaster response under an open disaster declaration, even a declaration by a prior administration.

Once Congress has funded the Disaster Relief Fund and there is a major disaster declaration, disbursement of funds is self-executing. As with Trump’s attempts to cut off foreign aid and federal research grants, his threats to condition emergency funds amount to an unconstitutional seizure of spending power from Congress.

Any conditioning or withholding of emergency relief funds by the president would also violate anti-impoundment doctrine. Trump’s now-rescinded order halting all federal grant disbursements thrust impoundment principles into the spotlight. (There have been excellent explainers on the history of impoundment in Lawfare and the Yale Journal on Regulation, as well as a concise critique of its use to withhold disaster relief by constitutional law scholar Erwin Chemerinsky.)

Impoundment is the refusal by the executive branch to expend congressionally appropriated funds. In reaction to President Richard Nixon’s refusal to spend money set aside for social programs, Congress in 1974 passed Impoundment Control Act to require the executive branch to expend appropriated funds, codifying Supreme Court anti-impoundment doctrine.

Chemerinsky notes that the 1974 act includes a narrow exception that “under certain circumstances allows a brief delay and gives the president means to ask Congress to reconsider an appropriation, known as rescission.” That Trump has ignored this requirement suggests he is trying to test the ongoing vitality of the 1974 act and the anti-impoundment principle in general.

Disregard for Long-Held Conservative Views of Federalism

Disregard for federalism norms was typical of the first Trump administration, most obviously on immigration enforcement. In 2017, Trump issued an executive order to disqualify sanctuary cities from certain federal grants. To implement the order, the Justice Department promulgated rules cutting those local governments off from eligibility for a law enforcement grant known as the Edward Byrne Memorial Justice Assistance Grant Program.

In one federal lawsuit after another, heard by judges appointed by Republican and Democratic presidents alike, the administration lost. The reasoning of the cases brought by the cities of Chicago, Philadelphia, and Los Angeles was remarkably uniform: the courts found that the executive branch had refused to carry out the will of Congress when funds for the Byrne grants were appropriated, violating the separation of powers. Only one court agreed with the Justice Department’s arguments, leading to a circuit split that was mooted when the incoming Biden administration rescinded the order. 

More litigation against the administration seems inevitable. Both conservative and liberal judges are unlikely to be sympathetic to another round of efforts to attach unconstitutional conditions to spending and to arrogate congressional power to the executive to set those conditions.

• • •

New wildfires broke out in the Carolinas last week. It will be interesting to contrast the Trump administration’s response to the California wildfires with those blazing in North Carolina, a state with a Democratic governor and closely divided legislature, and South Carolina, which has a solid Republican trifecta.

While states offer the first response to emergencies and disasters in the United States, the increasing frequency and severity of disasters has made the role of federal government more important. Returning disaster management to exclusive state and local control would be poor policy and a break with federalism values. But that is a decision for Congress, not the president. When Trump withholds federal funds lawfully appropriated by Congress, he undermines the policy choices those appropriations represent and ignores the sovereign powers of the states under the 10th Amendment.

Meryl Justin Chertoff is an adjunct professor of law at Georgetown University Law Center. She was also the managing editor of SLoG Law Blog.