Democratic legislators, mostly from blue states, are attempting to counter President Donald Trump’s efforts to withhold funding from their states by introducing bills that aim to give the federal government a taste of its own medicine.
The novel and untested approach, which has already been introduced in Connecticut, Maryland, New York, and Wisconsin, would essentially allow states to withhold federal payments if lawmakers determine that the federal government is behind on funding owed to them. Democrats in Washington state have stated that they are draughting a similar measure.
These bills still have a long way to go before becoming law, and legal experts predict they will face obstacles. However, they represent the latest efforts by Democrats at the state level to counter what they call the Trump administration’s massive overreach in ceasing federal funding for a variety of programs that have helped states pay for health care, food assistance, and environmental protections.
“Trump is illegally withholding funds that have been previously approved,” said David Moon, the Democratic majority leader in Maryland’s House of Delegates. “Without these funds, we are going to see Maryland residents severely harmed — we needed more options on the table for how Maryland could respond and protect its residents.”
Moon stated that the two bills are in response to various Trump actions that have withheld federal funding for programs that support children’s mental health and flood wall protections.
He compared the bills he presented to traditional “collections” actions taken against a “deadbeat debtor.” Even if they are not passed, Moon stated that the bills will help to bring about an audit and accounting of federal funds in the state.
Early in his second term, Trump’s Department of Government Efficiency unilaterally halted billions of dollars in funding for programs that states depend on. He has also threatened to withhold federal funding from states that implement policies he disagrees with, such as “sanctuary” policies for undocumented immigrants, though some of these freezes have been lifted by courts.
A Trump White House spokesperson did not respond to questions about this story.
Wisconsin state Rep. Renuka Mayadev, a Democrat, introduced two nearly identical bills that she said would force the federal government to release money it had previously withheld for Department of Agriculture programs that assist farmers and child care centres that primarily serve low-income families.
“We’ve seen the Trump administration wilfully violate the law by withholding federal funds to which Wisconsin residents are legally entitled. So these bills are primarily about providing a legal remedy and protecting Wisconsin residents,” she explained.
In all four states, the bills direct state officials to withhold payments owed by the states to the federal government if federal agencies have violated judicial orders or taken unlawful actions to withhold funds previously authorised by Congress.
Payments that can be withheld include federal taxes collected from state employees’ pay cheques, as well as grant payments owed to the federal government.
The bills are unlikely to be passed in Wisconsin, where Republicans control both chambers of the legislature. However, the fate of the bills in Maryland, New York, and Connecticut, where Democrats control the legislatures and governorships, remains unclear.
The same is true in Washington, where Democratic lawmakers intend to introduce similar legislation next session.
“It’s a novel concept,” Washington state Sen. Manka Dhingra stated. “I don’t think states have ever been in this position before … where there’s someone making arbitrary decisions on what to provide funding for and what not to provide funding for, contrary to current rules and laws and congressional allocation of funds.”
Legal experts have raised serious concerns about the challenges such bills would face if they were passed.
For one thing, they said, the supremacy clause of the United States Constitution clearly gives the federal government precedence over states, which could complicate legal arguments defending such laws — even though it is still unclear whether the executive branch has the authority to control funding solely.
More immediate practical obstacles, they explained, stem from the fact that the federal government transfers far more money to the states than the other way around.
“So withholding state payments to the federal government, even if there were no other obstacles, isn’t likely to change very much,” said David Super, a Georgetown University Law Centre professor of administrative and constitutional law.
Super added that states withholding money could exacerbate the situation of programs affected by federal cuts.
“There’s also the potential that some of the money going to the federal government has to be paid as a condition for the state receiving one or another kind of benefit for itself or for its people,” according to him. “The federal government could say, ‘You didn’t make this payment, therefore you’re out of this program completely.'”
However, Jon Michaels, a professor at the UCLA School of Law who specialises in the separation of powers and presidential power, believes states should still try in the current hostile political environment.
“Where can you try to get money back in various ways? Not because it will make a significant difference to the state treasury or the people of the state, but to essentially show the federal government, ‘Hey, we know what you’re doing and we don’t like it,'” he said. “States need to be enterprising and creative and somewhat feisty in figuring out their own scope of authority and the ways in which they can challenge the law.”
Another potential disadvantage is one that Democratic lawmakers foresee: additional retribution from Trump.
“We would all be foolish not to acknowledge that the federal government holds more cards than the states in terms of the budget,” said Moon, the Maryland legislator. “There’s certainly a risk of retaliation by the White House.”
