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PaperclipPerfector  7mo ago (text post)   26300 thread views

Culture War Roundup for the week of August 4, 2025

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The Federal Emergency Management Agency stated in grant notices posted on Friday that states must follow its "terms and conditions." Those conditions require they certify they will not sever “commercial relations specifically with Israeli companies” to qualify for funding.

I don't see any congressional approval for this condition anywhere in the statute, so I expect it won't last long in court.

To back up a bit, there is a whole area of law concerning when and how the federal government can attach strings to money granted to the states, because doing so can in some cases be coercive (see. e.g. SD v Dole). Since it raises constitutional concerns, the Court has said that Congress must do so in unambiguous terms. This is likewise a parallel with various other kinds of Federal preemption: Congress can preempt a variety of State laws, but respect for State's rights mean that if it wishes to do so, it has to legislate it clearly rather than having the courts infer preemption.

As I see it, this is just a totally illegal addition of "terms and conditions" to the spending that Congress didn't justify. It might arguably within the power of the Federal Government to impose such a condition, but seems very obviously not within the power of the executive, acting without a clear congressional statement, to do so.

The FEMA logic is that BDS is intrinsically racist. They stated this directly in their tweet explaining their policy in reaction to the backlash.

Irrespective of whether that's true, there is no explicit intent by Congress here.

There is not some kind of magic escape hatch from constitutional law that is invoked by putatively combating racism. If anything, I would have expected the Biden DOJ to put forward that kind of wonky theory (e.g. in SFFA) not the Trump one.

There is not some kind of magic escape hatch from constitutional law that is invoked by putatively combating racism.

There is. Christopher Caldwell calls it the Civl Rights Constitution. It's what allows the government to require employers to fire you for racist speech on the job, in order to encourage you not to be racist at home either. (Davis v. Monsanto Chemical Co. 858 F.2d 345). It's also what allows the government to engage in viewpoint discrimination with respect to 501(c)(3) qualification (Bob Jones Univ. v. United States, 461 U.S. 574 (1983))

Bob Jones is gonna come in extremely handy in the current administration v university dustup.

It is. I'd prefer it was overturned and we got the First Amendment back, but that ain't going to happen, so sharpening the other edge of that blade is the next best thing.

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