Conditional Spending

Ilya Somin | 8.26.2025 3:22 PM

President Trump recently issued an executive order directing the Justice Department to penalize jurisdictions that allow cashless bail, by withholding federal funds from them:

On Monday, President Donald Trump, who has called cashless bail a "government-backed crime spree," signed an executive order to end the policy nationwide. The order restricts the allocation of "Federal policies and resources" to jurisdictions and states with cashless bail policies for "crimes that pose a clear threat to public safety and order." It tasks Attorney General Pam Bondi with creating a list of such jurisdictions within 30 days, at which point the federal funds of these jurisdictions may be suspended or terminated.

Like a number of other Trump policies, this is simultaneously an attack on federalism and an attempt to usurp Congress' spending power. Supreme Court precedent - most of it authored by conservative justices - holds that only Congress can impose conditions on state and local governments receiving federal grants, and those conditions must be clearly stated in the statutes allocating the funds. There are a number of other constitutional constraints on grant conditions, as well.

This issue has come up most often with Trump's efforts to use grant conditions to coerce sanctuary cities, which limit........

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