National: No, Trump Can’t Withhold Anti-Terrorism Funds to Pressure States to Change Their Election Rules | Reed Shaw/Just Security
TThe first reason these grant conditions are unlawful is a simple one: federal agencies are “creatures of statute,” and there is no law that authorizes FEMA to weaponize its terrorism-prevention funding in this way. The only statute FEMA cites as authority for the NOFO is 6 U.S.C. § 603, the provision of the Homeland Security Act that creates the umbrella grant program. That provision does little more than direct FEMA to run the program’s two main components—the grants to states and the grants to high-risk urban areas—according to rules Congress spelled out in neighboring sections of the statute. Nothing in any of those provisions says a word about election administration, let alone authorizes conditions like these. Nor does Section 2007 of the Homeland Security Act (codified at 6 U.S.C. § 608), which establishes the factors that FEMA must consider when allocating funds under any of the terrorism-prevention grant programs, authorize these conditions. To the contrary, the statute directs FEMA to consider things like a state or metropolitan area’s “relative threat, vulnerability, and consequences from acts of terrorism, including” factors like their population, history of threats, and the proximity to an international border or waters. Although it doesn’t explicitly state as much, FEMA would likely argue that its election-administration conditions are authorized by § 608’s consideration of threats to “critical infrastructure”—which, as of 2017, includes election infrastructure—and buttressed by two “catchall” provisions that confer some amount of discretion on the Administrator to consider “other factors” and “other types of threat” when allocating funding. Read Article
