The Sharpie and the damage done
One hundred days into Donald Trump’s second term, American cities are reeling. In Milwaukee, federal grants for Head Start programs have been slashed. In Baltimore, grants for violence reduction programming have been halted. In Pittsburgh, devastating cuts to National Endowment for the Humanities grants for museums and a conservatory will leave a void in education and civic life. In Miami and Tampa, cuts to the National Oceanic and Atmospheric Administration will make hurricane forecasting and preparation more difficult. In New York City, beneficiaries of the Home Energy Assistance Program, which helps over 1.5 million households across the state each year, fear the worst, as the state has yet to receive about $36 million of its expected $360.2 million in funding for the program. Elon Musk’s Department of Government Efficiency, DOGE, has cut all federal staffing that administers the program. And in Washington D.C., Mayor Muriel Bowser was pressured to paint over Black Lives Matter Plaza and alter the city’s policies for managing the unhoused.
All of these changes, and dozens more in cities around the nation, are the result of executive orders signed by President Trump using that ubiquitous Sharpie. These executive orders are a direct attack on cities, a manifestation of the president’s hostility to the people who live in them and lead them.
There are three primary categories of executive orders that threaten cities right now: those targeting so-called sanctuary cities that refuse to cooperate with the administration’s draconian deportation polities by cutting their federal funding, stopping benefits to the undocumented and cutting funding to organizations and NGOs that serve them, along with other low income people (as I write, a new, additional punitive order is being announced); those that authorized DOGE to order hiring freezes and terminations, which are gutting programs that deliver essential services in urban areas; and those ostensibly targeting diversity, equity and inclusion (DEI) programs which have the effect of cutting funds to schools, libraries, historical sites and cultural institutions, as well as education and training programs for educators and public employees.
What is an executive order, anyway? Reporting in the press sometimes says President Trump “passed” an executive order. That’s misleading, and for urban policymakers and planners, it is worth understanding why. Legislation is passed by Congress, with bills requiring passage through both chambers. An executive order is simply a directive issued by the president. When founded on the authority of the president derived from the Constitution or statute, it may have the force and effect of law. An executive order is otherwise no more than an expression of the president’s policy preference. This principle goes back to a Korean War-era case, in which the U.S. Supreme Court held that the president had exceeded his powers when he attempted to seize steel mills to sustain production in the face of a strike by mill workers.
The role of the executive branch, and the president specifically, is to “see that the law is faithfully executed” — that is, to implement the will of Congress.
An executive order’s authority must derive from an already existing statute or a constitutionally enumerated presidential power under Article II of the Constitution. For example, since the president has the pardon power, his pardon of Jan. 6 insurrectionists, while odious, is lawful. When the president exercises an Article I power which belongs to Congress, like spending, through an executive order, then a legal challenge should be enough to void the order.
Of particular concern right now is federal grant funding to states and cities, in the form of formula and discretionary grants, which are included each year in the federal budget. Under the constitutional separation of powers, Congress holds the power of appropriation. The role of the executive branch, and the president specifically, is to “see that the law is faithfully executed” — that is to implement the will of Congress. This includes ensuring, through the federal agencies, that the funds appropriated for programming — whether directly to cities or agencies within them, or as passthroughs from the states — is carried out each year.
Trump is interfering with the implementation of the budget in unprecedented ways. The first is through what is known as impoundment. Contrary to federal Constitutional doctrine, reaffirmed in 1974 by an Act of Congress, Trump is acting on the false belief he has the power to halt the disbursement of funds appropriated by Congress, and his OMB has even made it difficult to follow how much that is happening by deleting the online tools that allow tracking of whether outlays are getting to their intended recipients in local government. Stakeholders have sued to restore that data access.
The second way Trump is collapsing the constitutional guardrails on executive authority is through executive orders that contradict the express direction of Congress for expenditures. While we are just starting to see the judiciary react to this overstepping since January, actions of the first Trump Administration are illuminating.
Trump is interfering with the implementation of the budget in unprecedented ways.
During Trump One, the Department of Justice, following one of Trump’s executive orders to punish sanctuary cities, ceased to release grant funds to local governments appropriated by Congress through a formula grant program called the Byrne Grant program. Byrne Grants were designed to fund capacity building programs for local police and public safety agencies. Federal courts found that the implementation of the executive order by the Department of Justice exceeded what is called a “reasonable condition” on the grants. Byrne grants were for general capacity building, not immigration enforcement. To hold the cities hostage to the peripheral purpose of immigration enforcement violated the intent of Congress. By insisting on the invalid condition, courts in multiple federal circuits found that the Justice Department had exceeded its power.
But we are back again. Last week, one of the same federal district judges who had ruled against the Trump Administration in 2017 ruled that the new iteration this year directing Attorney General Pam Bondi and Homeland Security Secretary Kristi Noem to ensure that “sanctuary” jurisdictions “do not receive access to federal funds” is likely unconstitutional.
Because federal funding infuses every aspect of municipal government in the U.S., arbitrary cutoffs imposed by DOGE mean that the president’s personal policy preferences are being made into law, bypassing both Congress and any agency independence.
Congress funded these programs for the current fiscal year. It could choose, in future years, to cut the funding. That would be a bad idea, and could result in some Members who choose to vote for draconian cuts losing their seats. But that is the point of the separation of powers; voters who dislike a budget passed by Congress can vote in new members in the next election.
Finally, stepping away from the budgetary issues and the horizontal separation of federal powers, Trump is also violating the vertical checks of federal-state affairs, and perhaps the state-protective Tenth Amendment, by interfering directly in areas that until now have been matters of local control. Education, in particular, is an area where local government has been the prime mover. Local governments and boards of education set K-12 curriculum and standards. Using his “anti-DEI” executive order as a roving warrant, Trump substitutes the judgment of his ideologue cronies for historically local determinations.
Government by executive order, which is what the president is doing now, collapses the separation of powers between the two federal elected branches. It violates the autonomy of states and cities in their historic areas of authority. The judiciary may well step in as a corrective. Meanwhile for cities, funding of local grant programs will be disrupted and locally responsive policy will be replaced by the policy preferences of Project 2025 and a handful of presidential advisors. City officials would do well to investigate collective action through lawsuits challenging executive orders that impact our cities and communities.