Why nonprofits can’t afford to celebrate legal victories just yet
I’m done trying to separate the “good” news from the “bad” because, as we saw last week, even the good is pretty bad. Below are federal actions from the past week that impact nonprofits and those who care about them.
Courts Hit Back, But Trump Doesn't Care!
We are in a phase during which federal trial courts rule that the Trump Administration has broken the law. This is a welcome development, but it carries a significant caveat. Trump just doesn’t care. He’s in it for the long haul.
This past week, a federal judge criticized the Administration’s attempt to use a nearly 250-year-old law, the Alien Enemies Act, to deport people without Due Process. The Trump Administration claims that the Act allows federal officials to barge into homes without warrants. The rule of law requires warrants in most police searches because we want to ensure that before someone’s privacy and liberty are put at risk, at least one other branch of government has reviewed an Executive’s claim that they have sufficient evidence to proceed. Absent warrants, the Executive operates without any prior checks on the exercise of raw power. When asked about the impending slap-down, Trump’s Border czar said, “I don’t care what the judges think. I don’t care.” In ordinary times, this man would be brought to court to receive a personal lesson in the power of federal judges to hold someone in civil or criminal contempt of court. These, however, are not ordinary times.
The federal judge in the Alien Enemies Act case was not alone in criticizing the Trump Administration or imposing temporary blocks on the Administration’s exercises of power. As of March 20, some 12 federal judges had found breaches of the law by this new Administration – surely some sort of speed record for budding administrations. These rulings include cases relating to the Administration’s attempt to ban transgender personnel from serving in the armed forces and the dismantling of USAID (where the court found that the Administration had likely acted unconstitutionally “in multiple ways”). Another federal judge temporarily blocked the Trump administration's attempt to terminate $14 billion in grants awarded to three climate-focused groups through the Greenhouse Gas Reduction Fund.
There’s a problem, however. As I have mentioned before, the Administration just doesn’t care. It’s playing a “long game” to get these cases before “the conservative supermajority at the Supreme Court where his lawyers believe Trump will prevail in his expansive use of executive power.” In other words, President Trump doesn't need to win in the federal trial courts or courts of appeals. Ultimately, he is confident in His Supreme Court.
Even conservative voices like the Wall Street Journal note that far from ebbing, the pace of attack on previously accepted norms of governance has been escalating. These efforts are grimly similar to those of many other repressive regimes. But in fact, they are worse. Professor Steven Levitsky, author of How Democracies Die, writes, “I’ve never seen anything like it. We look at these comparative cases in the 21st century, like Hungary and Poland and Turkey. And in a lot of respects, this is worse. These first two months have been much more aggressively authoritarian than almost any other comparable case I know of democratic backsliding.” University of Michigan Professor Don Moynihan argues, “The Trump presidency is, as much as anything, a project of purging and erasing large parts of America, of people, ideas, capacities, and knowledge.”
The democratic backsliding targets nonprofits, among others. The New York Times observes that there are “[o]minous suggestions that nonprofits aligned with Democrats or critical of President Trump should have their tax exemptions revoked.”
Meanwhile, those judges who have ruled against the Administration fear for their safety because of calls by members of Congress to have them impeached and rabid threats by MAGA loyalists.
Consider one additional point about the Trump Administration's “long game.” Over the next four years, the Trump Administration will likely have the opportunity to appoint another 300 federal judges.
Nonprofit Officials Evicted from Offices During DOGE Takeover
Congress created a nonprofit called the US Institute of Peace (USIP), which has its beautiful offices on the northwest corner of the National Mall near the Lincoln Memorial in Washington, DC. On March 18, DOGE staffers went to this nonprofit and, assisted by Washington DC’s Metropolitan Police Department, forced USIP personnel to vacate their building so that DOGE could take it over. Apparently, DOGE threatened security contractors at the USIP that if they didn’t cooperate with the eviction, they would lose other security contracts with the federal government. This is a horrible precedent. If this can happen to a nonprofit specifically authorized by Congress, what remains of the protection for less prestigious 501(c)(3)s?
Trump Administration Officially Dismantling the Education Department
An Executive Order issued Thursday formalizes what I reported last week: the Trump Administration intends to disband the Department of Education.
Trump Continuing to Target Those Who Try to Speak for Others
On the heels of attempting to punish the law firm of Perkins Coie, the Trump Administration continues to issue executive orders purporting to ban other law firms from work related to the federal government. Last week, in the face of this threat, the prestigious firm of Paul Weiss agreed to cooperate with the Trump Administration in a manner that was particularly obsequious. We are in an age of Preemptive Obedience.
For those of you who might be tempted to say, “but it’s just lawyers,” there is no reason this model could not be applied to any organization that purports to speak for any community that is disfavored by this Administration.
Social Security on the Chopping Block
Do your nonprofit’s beneficiaries rely on Social Security? New staffing cuts are creating “gaping holes” in SSA’s infrastructure. Even if SSA payments are not directly curtailed, these cuts threaten the ability of the Agency to function.
To Avoid Federal Threats, Columbia University Complies with Federal Demands
Columbia University agreed to implement many changes, including increased political oversight of Middle East scholars and enhanced campus security measures, to restore $400 million in federal funding that was previously cut amid allegations of tolerating antisemitism. This development underscores the federal government's influence on academic institutions and may set precedents affecting university-affiliated nonprofits.
In response, consider a quote from William Rainey Harper, founding president of the University of Chicago, in 1906:
“When for any reason, in a university on private foundation or in a university supported by public money, the administration of the institution or the instruction in any one of its departments is changed from an influence from without; when an effort is made to dislodge an officer or a professor because the political sentiment or the religious sentiment of the majority has undergone a change, at that moment the institution has ceased to be a university, and it cannot again take its place in the rank of universities so long as there continues to exist any appreciable extent of coercion.”
Columbia is not alone. Universities around the nation are caving to the pressure. Likewise, just as in the federal government, universities are cutting research and reducing staff. Like the dislocations caused by loss of federal expertise, these cuts will threaten data sources and research efforts that nonprofits rely on to meet their missions.
Administration Targets Museum and Library Funding
The Trump Administration issued an Executive Order cutting significant funding for the Institute for Museum and Library Services (IMLS), a federal agency providing grants and support to museums and libraries nationwide. This action threatens the financial stability of cultural institutions and the nonprofits that support them, reducing public access to educational resources.
Remember When They Said Project 2025 Was Irrelevant to the 2024 Election?
Paul Dan, leader of Project 2025 project, recently crowed, “There really is almost no difference between Project 2025 and what Trump was planning all along and is now implementing.” Well, how about that.
