Days after federal judges ordered the White House to restore federal funding it paused with the Office of Management and Budget memo, some groups say they still cannot access funds, leaving them to question if the administration intends to skirt the power of the judicial branch.
Trump and administration officials believe in the broadest possible interpretation of presidential power. Critics wonder if flooding the system with executive orders that test the limits of the office is a deliberate effort to circumvent court power by overwhelming it — and whether those checks will hold.
“The bottom line is this,” Peter Neronha, the attorney general of Rhode Island, told NOTUS Wednesday, “is the failure to turn the money back on a function of the federal government being this enormous engine that just takes time, once it’s been shut off, to come back on? Or is it a deliberate and intentional rejection or failure to follow the court’s order?”
Neronha’s office led a suit joined by 22 other Democratic attorneys general, resulting in a federal judge blocking the White House from freezing funds on Jan. 31, one of two forceful orders where judges told the administration in no uncertain terms that it could not just pause all federal grants and loans. But since that time, Neronha says his team has been fielding reports from groups who say their expected federal funds remain unavailable.
NOTUS has confirmed several incidents of funds being inaccessible past the court order for Head Start programs. A senior administration official told NOTUS that “HHS had a technical processing issue” that had been resolved and blamed the Head Start problems on a “backlog of payment approvals” from that glitch.
This week a group of more than 250 aid group leaders in New York who rely in part on federal funding convened on a call led by Therese Daly, president and CEO of the state branch of the United Way. Coming up for air after days of chaos, the leaders tried to feel out an understanding of who remains cut off and who has been returned to the pre-memo normal, as the judges have ordered.
Larger groups like Daly’s, with broad profiles, said they had mostly seen funding return, though Daly said there were still missing funds for some, and inquiries out to the federal agencies about the money had gone unanswered. Some smaller groups on the call, with less staff and not much of a public profile, especially those with grants specifically aimed at marginalized populations, reported that their funding was still on pause.
Meanwhile, many groups that rely on federal funds are in the dark about whether the administration intends to follow the court orders, and some have begun to proceed as though the money will never return to its authorized levels.
The reason could be structural, as the government says is the case with Head Start: It is incredibly difficult to turn off federal funding and turn it back on again quickly. The administration’s bull-in-a-china-shop ethos is crashing into the reality of government impacting people’s lives.
But groups are left wondering how the administration plans to press ahead with its agenda despite the spirit and letter of two federal judges’ orders.
“As soon as we have evidence of one intentional withholding of funds, notwithstanding the order, that the order covers, we’re going to be back in front of Judge McConnell asking to have the administration held in contempt,” Neronha said, referring to the Rhode Island federal judge who ordered the restraining order on the White House.
Finding that evidence, so far, is a game of “whack-a-mole,” Neronha said. Groups that report they’re still not getting their promised funds have the stream turned back on by the time his office gets to them. But those reports are still coming in, and he said he expects to know if he’ll be back in court to argue contempt very soon, within days.
On the New York call, it was suggested that people call their members of Congress for help because it has proved nearly impossible to get answers from federal agencies.
That’s the same advice the National Head Start Association is giving its members, a few of whom are still struggling to get federal funding online despite being specifically exempt from the funding pause by the White House in its first “clarification” of the OMB memo.
“Staff are not in a position where they can respond to inquiries that we’ve seen,” Tommy Sheridan, NHSA spokesperson, said. Sheridan said his group has seen the funding system Head Start groups use slowly come back, leaving him with “optimism” that the money will be fully restored.
But some Head Start providers remain shaken.
“The challenge is the uncertainty level to it,” Sheridan said.
In New York, the new consortium convened by Daly is planning to ask state leaders to create a contingency fund to make up for federal money that may never fully return.
“The United Way of New York State is here to assist nonprofits as well as our state, local and federal partners on both sides of the aisle to keep critical funding from the federal government going so that everyone in our community can thrive,” she said.
Some Democrats, who have already called out Donald Trump’s federal freezes for being against the law, are already bracing for a deepened constitutional crisis.
“Donald Trump has shown a willingness to break the law,” Sen. Elizabeth Warren told NOTUS. “No one can be sure how far that extends, whether he will listen to court orders or simply put himself above the laws in this country, no matter where they come from.”
No matter how many lawsuits it takes, Neronha says the system can handle it.
“I hear from the president and his allies ‘shock and awe’ all the time,” he said. “Well, we’re not shocked and we’re not awed.”
The Democratic AGs have assembled the “biggest law firm in the country,” he said, uniting the staff of 23 attorneys general against oversteps of presidential power.
“There are lots of courts with lots of judges,” he said. “We’re not going to have any trouble with capacity here.”
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Evan McMorris-Santoro is a reporter at NOTUS.
Calen Razor, a NOTUS reporter and an Allbritton Journalism Institute fellow, contributed to this report.