Twenty-four state attorneys general and two governors filed suit against FEMA and the Department of Homeland Security last month, and the complaint reads less like a dispute over hurricane preparedness than a constitutional stress test. Congress appropriated billions in Homeland Security Grant Program funding for disaster response and counterterrorism readiness. FEMA and DHS now say a fifth of that money stays locked in Washington unless states switch to paper ballots, run manual audits of their voting systems, screen every registered voter and election worker through DHS’s SAVE database, and commit police resources to federal immigration enforcement.
The agencies have also reserved the right to terminate the grants “at any time and for any reason” — a phrase that tells you the Trump administration knows it’s on thin ice and builds a trapdoor instead of a bridge.
I spend my working life evaluating whether fiduciaries honor the terms under which they hold someone else’s money. The federal government is, in a real sense, a fiduciary of the public purse, bound by the terms Congress writes into an appropriation. When an agency attaches conditions Congress never authorized, it isn’t administering a grant. It’s helping itself to power that belongs to somebody else.
The Constitution allows Washington a fair amount of that kind of pressure, within limits the Supreme Court has spent 40 years defining. South Dakota v. Dole upheld withholding highway funds from states that wouldn’t raise their drinking age to 21, but set four conditions: the spending must serve the general welfare, the terms must be clear enough for states to know what they’re agreeing to, the condition has to relate to the purpose of the program, and the pressure can’t amount to compulsion. The seven-justice Dole majority called the drinking-age condition “relatively mild encouragement.” Twenty-three years later, NFIB v. Sebelius crossed that line. Threatening states with the loss of every Medicaid dollar unless they expanded the program wasn’t an inducement, the court held. It was a gun to the head.
Measure the FEMA and DHS conditions against that framework, and the relatedness problem shows up first. Paper ballots and voter-citizenship verification have nothing to do with hurricane response, wildfire mitigation, or counterterrorism readiness, which is what the Homeland Security Grant Program exists to fund. Forcing a police department to devote scarce hours to immigration enforcement as the price of keeping its disaster-preparedness dollars is the same move in a different uniform. Dole tolerated a loose connection between highway money and highway safety. Nobody can draw an honest line from emergency management appropriations to a state’s election statutes.
Then there’s coercion, and the FEMA/DHS conditions are arguably worse than the ones NFIB struck down. Medicaid expansion involved money that states could, in theory, replace, however painfully. Disaster and counterterrorism grants fund capabilities a state can’t substitute on short notice, particularly along the hurricane-prone Gulf Coast and the wildfire-exposed West. Losing 20% of HSGP funding isn’t a rounding error for an emergency management office; it’s the difference between a fully staffed operations center during hurricane season and one running short-handed when the call comes in. If conditioning all Medicaid funding on expansion was a gun to the head, conditioning disaster dollars on rewriting election law and reassigning police priorities looks like a hand around the throat of federalism itself.
There’s a structural problem underneath the Spending Clause analysis, and it matters as much as the doctrine. Article I gives the power of the purse to Congress, not FEMA or DHS. The Appropriations Clause bars any withdrawal from the Treasury except pursuant to a law Congress passed. Agencies administer statutes; they don’t rewrite them by memo. When DHS invented a voter-citizenship verification requirement that no statute imposed on the Homeland Security Grant Program, it wasn’t executing the law under Article II. It was legislating, and the Constitution didn’t give it that authority.
Anti-commandeering doctrine closes the remaining gap. Printz v. United States and New York v. United States hold that Washington can’t order state officials to administer a federal scheme, whether direct or laundered through a grant condition built to produce the same result. States have litigated a version of this fight already. When DOJ conditioned Byrne JAG law-enforcement grants on local cooperation with federal immigration agents, four circuits held it exceeded its statutory authority; the Seventh Circuit ruled flatly that the Attorney General can’t pursue executive-branch policy through the power of the purse. Only the Second Circuit went the other way, upholding the conditions as authorized by the Byrne JAG statute’s own text. Even that ruling turned on what Congress actually wrote. Nothing in the Homeland Security Grant Program statute says a word about paper ballots.
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None of this means Washington has to underwrite policies it dislikes with no strings attached. If a state takes federal money, it can reasonably be asked to follow rules that govern that money’s use. I have no quarrel with that principle. But the clean version of it runs through Congress, not through an agency press release. Congress can write election security or immigration cooperation conditions into a grant statute if it has the votes, define their scope with precision, and let states decide with open eyes whether to take the money. What it can’t do is let unelected agency officials manufacture sweeping new conditions on programs built for a different purpose, then hold disaster funding hostage to enforce them.
The 24 attorneys general suing over these HSGP conditions aren’t defending sanctuary policy or lax election administration. They’re defending the proposition that Congress, and only Congress, decides what strings come attached to federal money, and that no agency gets to invent new ones because it couldn’t get the votes for a law. Conservatives spent decades arguing the administrative state overreaches when it legislates through guidance documents instead of statutes. That argument doesn’t stop applying just because the guidance happens to target policies we don’t like. It’s not partisan. It’s the Appropriations Clause, doing exactly the job the Founders gave it.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.