Wait, Can He Actually Do That? Parts 9, 10, and 11: USAID, Alien Enemies Act, and Universities
This post summarizes and provide links to three of my latest efforts to describe and resist the war on the rule of law being waged by Donald Trump and Elon Musk. Continuing my numbering convention from earlier posts in this series, I start at 9.
(9) Yesterday, I was the legal expert guest on the Bloomberg Law podcast. For roughly the first half of the podcast, host June Grasso and I discussed the recent district court ruling (in the posture of the grant of a preliminary injunction) that Elon Musk was appointed unconstitutionally and his dismantling of USAID violates separation of powers. During the second half of the podcast, we discussed other cases and the indications that the Trump administration is defying court orders.
(10) One of the cases on which Grasso and I focus as Exhibit A for defiance is the litigation before Judge Boasberg contesting the administration's reliance on the Alien Enemies Act to expel hundreds of Venezuelan migrants to jail cells in El Salvador. That case is also the subject of my latest Verdict column, in which I argue that even if the administration is technically not violating the court's order (which already seems dubious), its gamesmanship in that case and in the litigation involving Mahmoud Khalil is a threat to the rule of law.
(11) Below I reproduce an open letter decrying the Trump administration's unlawful cutoff of funds to Columbia that I co-wrote and co-organized with Professors David Cole and Eugene Volokh. That letter appears in The New York Review of Books. I was very pleased that the signers are ideologically very diverse but united in our commitment to free speech, academic freedom, and due process. Here is the letter:
A Statement from Constitutional Law Scholars on Columbia
Eugene Volokh, Michael C. Dorf, David Cole, and 15 other scholars
We write as constitutional scholars—some liberal and some conservative—who seek to defend academic freedom and the First Amendment in the wake of the federal government’s recent treatment of Columbia University.
The First Amendment protects speech many of us find wrongheaded or deeply offensive, including anti-Israel advocacy and even antisemitic advocacy. The government may not threaten funding cuts as a tool to pressure recipients into suppressing such viewpoints. This is especially so for universities, which should be committed to respecting free speech.
At the same time, the First Amendment of course doesn’t protect antisemitic violence, true threats of violence, or certain kinds of speech that may properly be labeled “harassment.” Title VI rightly requires universities to protect their students and other community members from such behavior. But the lines between legally unprotected harassment on the one hand and protected speech on the other are notoriously difficult to draw and are often fact-specific. In part because of that, any sanctions imposed on universities for Title VI violations must follow that statute’s well-established procedural rules, which help make clear what speech is sanctionable and what speech is constitutionally protected.
Yet the administration’s March 7 cancellation of $400 million in federal funding to Columbia University did not adhere to such procedural safeguards. Neither did its March 13 ultimatum stipulating that Columbia make numerous changes to its academic policies—including the demand that, within one week, it “provide a full plan” to place an entire “department under academic receivership for a minimum of five years”—as “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.”
Under Title VI, the government may not cut off funds until it has
* conducted a program-by-program evaluation of the alleged violations;
* provided recipients with notice and “an opportunity for hearing”;
* limited any funding cutoff “to the particular program, or part thereof, in which…noncompliance has been…found”; and
* submitted a report explaining its actions to the relevant committees in Congress at least thirty days before any funds can be stopped.
These requirements aim to ensure that any withdrawal of funds is based on genuine misbehavior on the university’s part—on illegal toleration of discriminatory conduct, not just on allowance of First Amendment–protected expression. The requirements aim to make clear to recipients of federal funds just what behavior can form the basis for sanctions. And each of the requirements aims to make sure that the sanction fits the offense.
Yet here the sanction was imposed without any agency or court finding that Columbia violated Title VI in its response to antisemitic harassment or discrimination. Even to the extent that some protesters’ behavior amounted to illegal harassment of Jewish students, no agency and no court has concluded that Columbia illegally failed to reasonably respond to such discriminatory behavior—much less failed to act at a level justifying withdrawal of nearly half a billion dollars in funds. The government’s action therefore risks deterring and suppressing constitutionally protected speech—not just illegal discriminatory conduct.
And this danger extends beyond universities. The safeguards and limits that the administration has ignored are designed to protect all recipients of federal funding from unwarranted or excessive sanctions. They protect recipients of federal funding across the ideological spectrum, including K-12 schools, hospitals, nursing homes, and business and agricultural initiatives. The administration’s failure to honor the Title VI safeguards creates a dangerous precedent for every recipient of federal financial assistance.
Steven G. Calabresi, Clayton J. and Henry R. Barber Professor of Law, Northwestern Law School
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, Berkeley Law School
David Cole, Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center
Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School
Richard Epstein, Laurence A. Tisch Professor of Law, NYU School of Law
Owen Fiss, Sterling Professor Emeritus of Law, Yale Law School
Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School
Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
Randall Kennedy, Michael R. Klein Professor of Law, Harvard Law School
Genevieve Lakier, Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
Michael McConnell, Richard and Frances Mallery Professor of Law, Stanford Law School
Michael Paulsen, Distinguished University Chair and Professor, St. Thomas Law School
Robert Post, Sterling Professor of Law, Yale Law School
David Rabban, Dahr Jamail, Randall Hage Jamail, and Robert Lee Jamail Regents Chair in Law, University of Texas Law School
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Nadine Strossen, John Marshall Harlan II Professor of Law Emerita, New York Law School
Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution, Stanford University
Keith Whittington, David Boies Professor of Law, Yale Law School