But these conditions are not only a bad idea–they are unlawful and, indeed, likely to be challenged in court. As I explain below, they suffer from three principal defects: the Trump administration lacks authority to impose them; they conflict with the Constitution’s Spending Clause; and they are the product of arbitrary-and-capricious decisionmaking.
In May, a federal court dispensed the administration a dose of reality. The case, American Council of Learned Societies v. National Endowment for the Humanities, concerned an initiative closely related to DOGE’s deregulatory push: its mass cancellation of NEH grants in 2025.
So how might those committed to democratic principles begin to punish, deter, or at the very least expose corrupt dealings in the federal government? Part of the answer lies in so-far underutilized state laws related to unfair competition and additional applications of federal administrative law – two of several possibilities, including those that others have identified. Together, the two target opposite sides of the same transaction: the private actors who seek corrupt advantage, and the federal agencies that grant it.
The Trump administration has settled on a strategy: frame efforts to withhold congressionally appropriated funds as fraud prevention, and hope that hard questions about evidence, process, and legal authority disappear.
When it comes to federal administrative capacity, the Trump administration is working at cross-purposes with itself.
We promised you that this symposium would be for AI skeptics, AI believers, and everyone in between, and we hope that you will agree that we delivered.
Recent attempts to block wronged federal grantees from having their day in court reflect a broader Trump administration strategy.
The court’s holding is narrower than a first reading might suggest.
This post is the third contribution to Notice & Comment’s symposium on AI and the APA.
This symposium is for AI skeptics, AI believers, and everyone in between.