Even the good news is relatively bad
I try to focus on good as well as bad news relating to the Trump Administration’s war on the nonprofit sector. It’s hard to find the former this week, and where I have, that adjective is so qualified as to almost disappear. Originally, I tried to start this email with the good news. But that rang false to me, particularly because of the first item I list in the "bad" section, below.
Writing About a So-Called "War on the Nonprofit Sector" Hides What's Going On
I will write more on this in the near future, but I know many of you depend upon my views of emerging threats and opportunities, or at least consider them when running your nonprofit. I want you to understand where I see things going. Some might object to me using military cliches when discussing what's happening right now to nonprofits. What "war" on the nonprofit sector? No guns have been brandished, no blood spilled.
I myself may object, but for a different reason.
I write this post as a consultant in the nonprofit sector. I have been in and around that sector for more than 30 years. I lived in metropolitan Washington DC and worked in the District for most of that time. For many of those years, while providing pro bono support for nonprofits, my day job was focused on appellate and trial court litigation at a major international law firm. I'm a member of the Bar of the Supreme Court of the United States and worked on many cases before that Court. I served as a law clerk for a federal appellate judge. I also taught at Georgetown University Law Center, first as an adjunct and later for a short time as a visiting professor. I consider myself a student of our democracy and its institutions. Not a scholar, but a serious student.
The worrisome thing is that, as a student of our democracy, I'm beginning to believe that my "war" cliche trivializes the danger. Yes, I think there is a "war on" nonprofits and their beneficiaries in the sense that there was a "war on" terror or a "war on" drugs. There is, that is, a shift in policy against the sector: in the same way that the "wars" on drugs and terror signaled a reallocation of federal resources and federal will, there has been a decided shift against nonprofits. Where once Republicans held nonprofits up as a thousand points of light, now nonprofits are vilified as scams.
I fear, however, that what we're seeing is much more than simply a shift in priorities at the federal level, with inevitable growing pains as other actors in civil society adjust. The actions of the Trump Administration so far have all the marks of a true push toward authoritarianism. While I still struggle try to put my thoughts into words, I sense that they will not be far from those expressed by Lee Bollinger, the former president of the University of Michigan and Columbia University, who is also a First Amendment scholar. His words were excerpted in this piece by Josh Marshall, but I set the relevant paragraph from that piece here in full:
We’re in the midst of an authoritarian takeover of the U.S. government. It’s been coming and coming, and not everybody is prepared to read it that way. The characters regarded as people to emulate, like Orbán and Putin and so on, all indicate that the strategy is to create an illiberal democracy or an authoritarian democracy or a strongman democracy. That’s what we’re experiencing. Our problem in part is a failure of imagination. We cannot get ourselves to see how this is going to unfold in its most frightening versions. You neutralize the branches of government; you neutralize the media; you neutralize universities, and you’re on your way.
I want to be wrong. I hope I am wrong. But I feel I have a duty to my readers to let them see the trend of my thought.
Those who have talked to me know that I have lately been reflecting on whether and how nations that experience authoritarian waves come through the other side, and what that other side looks like if they find it. Of course, because I care so deeply for the nonprofit sector and its beneficiaries, I am particularly concerned with the effects of authoritarianism on social entities that tend to care for those who are most vulnerable.
One important point is that authoritarian nations also have nonprofit sectors, and those sectors make a difference in their communities. My work will continue to focus on nonprofit resilience and sustainability. I expect to focus often on the basic blocking and tackling of daily risk management. I think that work is more important than ever before, because I believe, as I have written elsewhere, that
I didn't go far enough in those sentences, however, because I had no concept of just how sharp-edged our society might become in a few short years. Nonprofits are vital to civic health. They are bastions of goodwill channeled into good action.
Nonprofits may also form a nucleus of resistance. Energizing their stakeholders and beneficiaries, they may serve as a worthy adversary in any struggle to come. Thus, I view this moment as much more than simply a time of potential restructuring. I could envision nonprofits as important actors in generating and advancing an alternative narrative in these times.
I don't want to thrust this upon you as your personal duty. I know you are busy running your own organizations. I know many of you face budget cuts, reductions in force, and retrenchment. I want to explore the notion, however, that nonprofits need to focus much more directly on advocacy and mobilization of views that counter the authoritarian push.
What I can say right now is that the stakes are far greater than any single nonprofit or even the whole of our sector.
Senate Narrowly Avoids Government Shutdown, Instead Permitting Disastrous Federal Budgeting Policy to Continue Until October
The U.S. Senate narrowly passed a six-month Republican spending bill with a 54-46 vote, preventing a government shutdown. The bill, now signed into law, grants the Administration significant control over federal spending. While some Democratic leaders supported the bill, others criticized it for conceding too much power.
I agree with critics like Bernie Sanders, who writes that Democrats approved a temporary funding scheme that harms most Americans while protecting wealthy interests. I’m no Bernie Bro, but the analysis in that piece is sound. The six-month package gives Trump and DOGE extensive opportunity for mischief. It allows the Trump Administration to continue its policy of illegally impounding money that Congress had already set for spending. And it sets up an inevitable showdown in late September when Congress will again have to face a budgeting decision.
I understand that Democrats had no good options here. Republicans control both houses of Congress and the Presidency. Shutting down the government would have stirred chaos when markets are already reeling. But now the Administration will remain untethered by legislative oversight or initiative for the next six months, and the federal budget contemplated for next fiscal year is premised on cutting extensive federal services to allow the continuation of tax cuts for the wealthy that would otherwise expire.
The Department of Education Is Dying
This week the Department of Education announced that it would cut nearly half its staff, hard on the heels of decisions to halt two billion dollars in spending for education research, professional development for teachers, and other work. As author Conor Williams notes, this is happening at a time when pandemic recovery funds are winding down.
HHS Is Going to Get “Reorganized” Some More – the Kind One Has To “Brace” For
It was reported on Friday that the Department of Health and Human Services is facing additional cuts and disruption, including “staff working with the assistant secretary for technology policy and the Office of the National Coordinator for Health Information Technology, according to four of the people, as well as the Agency for Healthcare Research and Quality (AHRQ), the Health Resources and Services Administration, and the Administration for Children and Families.” One source likened what may happen to AHRQ “to the shutdown of the U.S. Agency for International Development [USAID]," where the "Trump administration has effectively closed USAID down.”
For context, AHRQ is responsible for “improving the quality and safety of healthcare delivery” and “develops the knowledge, tools, and data needed to improve health system performance and help patients, health-care professionals, and policy makers make informed health decisions.” It creates the tools and training that helps health care professionals perform their jobs. HRSA provides free and low-cost health care, and ACF provides assistance “with welfare, child support enforcement, adoption assistance, foster care, child care, and child abuse.”
I’m cynically forced to wonder whether the Administration will make a tactical backtrack, trading preservation of AHRQ for full elimination of HRSA and ACF. That way, the Administration would be able to specifically target the poor while laying a fig leaf over the wound.
More Than 60 Universities Under Investigation for DEI Practices or Anti-Semitism as Trump Administration’s Intimidation Tactics Increase
The Department of Education (DOE)—at least that part that still survives for now (see above)—has launched investigations into 52 universities, claiming that they use “racial preferences and stereotypes in education programs and activities.” At the same time, DOE has announced investigations of 60 universities over claims of anti-Semitism. Columbia University, in particular, is being threatened by a Trump Administration’s demand to take over an academic department at the university and revamp the school’s admissions policies.
Appeals Court Permits Two DEI Executive Orders to Remain in Force During Appeal
A court of appeals in Richmond, VA, ordered that two controversial anti-DEI Executive Orders can remain in force while they are challenged in an ongoing appeal. The Executive Orders, signed on Trump's first day in office, seek to terminate federal "equity-related" grants and require federal contractors to certify non-promotion of “illegal” DEI activities.
A trial court had suspended operation of the two EOs, but the court of appeals found that the orders as written were narrow and limited, and that the orders did not specify the potentially-impacted DEI practices. The orders purport to address only conduct that “violates existing federal anti-discrimination law,” and they do not purport to regulate grantees’ conduct outside the scope of the funded activities.
Two judges on the panel defended DEI practices. They also warned that the EOs, while facially narrow, may be enforced in ways that “may well raise serious First Amendment and Due Process concerns.” The third, a Trump appointee, pointedly observed that “a judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”
The ruling means that the panel that will hear the appeal has concluded that the Trump Administration has shown that it is likely to prevail on the argument that the EOs, as written, are Constitutional. The appeals court has not decided that issue but has ordered an expedited schedule to reach and decide that claim. Two of the panel judges worry that Trump officials may apply the EOs in ways that do violate the Constitution, but that issue is not yet before the court.
In short, the Executive Orders will remain in force. Crucially, someone will have to determine what is meant by DEI activity that "violates federal anti-discrimination law." The Trump Administration presumes all of it does and, doubtless, will act on that belief. Two members of the appellate court, as well as 16 state attorneys general, believe that conclusion is wrongheaded.
In the meantime, a chilling effect will remain. Nonprofits and others affected by the EOs don’t know what conduct puts them in jeopardy, but they are aware that DEI-related activities will put them in the crosshairs. Furthermore, the EOs are likely to be applied aggressively by the Trump Administration, and that enforcement activity will likely be challenged before the same trial court that heard the initial case (or some other tribunal). That follow-on litigation will also take time, and the chilling will continue through the balance of that litigation, as well.
For nonprofits that believe that their DEI efforts do not violate federal law, the brave response would be to continue business as usual, as if the flurry of January 20th and its immediate aftermath were irrelevant. But that would take (I will try to be delicate here) titanium testes, particularly for those whose strands of DEI work are a relatively small part of a larger tapestry of activity that includes services that keep people alive, or fed, or housed, or free from imminent danger, or able to exercise control of their own choices about their own bodies.
No doubt, an anguished nonprofit leader may be confronted with the terrible thought: Why go to bat for DEI when lives are at stake?
No doubt, communities of color or particular vulnerability may see any retreat as proving that nobody really cared about DEI in the first place. They may believe that the moment gives white power the excuse to sweep back under the rug our hundreds of years of exploitation and inequality.
No doubt, such actions and reactions will undermine the cooperation of those who have the greatest interest in resisting authoritarianism and comprise the largest pool of potential resistance.
And that, no doubt, is the cold calculus of this Administration.
USDA Cuts Funding for Local Food Programs Across the Country
The U.S. Department of Agriculture (USDA) has terminated two programs totaling approximately $2 billion that enabled food banks and schools to purchase produce from local farms and ranches. USDA Secretary Brooke Rollins justified the cuts by labeling the programs "nonessential." This action disrupts the farm-to-school and farm-to-food-bank initiatives in more than 40 states, adversely affecting nonprofits focused on local food sourcing and community nutrition and, of course, countless thousands of apparently "nonessential" hungry children and families that rely on these goods. It also affects thousands of "nonessential" farmers and ranchers who overwhelmingly voted for Donald Trump, as widely described in Red-state newspapers in places like Texas, Tennessee, Louisiana, Iowa, and elsewhere. Cruelty and FAFO, in equal measure.
Significant Cuts to USAID Funding Impacting Nonprofits
The Trump Administration's dismantling of USAID continues to affect humanitarian and development programs worldwide. Johns Hopkins University will eliminate over 2,000 jobs after an $800 million cut in USAID funding. These cuts also impact affiliated nonprofit Jhpiego, which focuses on international health. More broadly, the reduction in funding threatens the sustainability of numerous nonprofits engaged in global health and development initiatives.
Federal Actions Force San Diego Nonprofits to Reduce Services
San Diego's nonprofits are grappling with financial instability due to recent federal policy changes, including funding freezes and executive orders. Consequently, many have had to cut staff and services, affecting vital community programs. A survey by The Nonprofit Institute at the University of San Diego found that nearly one-third of over 400 local nonprofits had to modify or discontinue their services. This situation underscores the challenges nonprofits face amid shifting federal policies.
Administration Halts Funding for Cybersecurity Initiatives
The Trump administration has ceased federal funding for two cybersecurity efforts led by the U.S. Cybersecurity and Infrastructure Security Agency (CISA), impacting state and local elections. Approximately $10 million annually provided to the nonprofit Center for Internet Security and two specific initiatives—the Elections Infrastructure Information Sharing and Analysis Center and the Multi-State Information Sharing and Analysis Center—have been terminated. This move raises concerns about potential vulnerabilities in the U.S. election system and may have follow-on effects on other nonprofits dedicated to cybersecurity.
Judge Really Did Not Like the Executive Order Targeting Lawyers
You recall that Executive Order I wrote about last week at the end of my report? The EO purported to ban the law firm of Perkins Coie and those doing business with that firm from federal contracts and also barred Perkin Coie employees from federal buildings. A judge in Washington DC did not like that one bit. Noting that the EO sent “little chills down her spine,” Judge Beryl Howell issued an order blocking most of the order.
Nonlawyers may dismiss this ruling as one lawyer (a judge) protecting other lawyers. Lawyers, however, are the people who represent others in courts of law. Muzzle the lawyers, and you muzzle the people—including nonprofits.
To be clear, this is good news, but only in a limited sense. It has not prevented the Trump Administration from continuing to target law firms. Nor has it restrained other authoritarian initiatives, like the ultimatum to Columbia University described earlier in this report.
Judges in Two Different Cases Order Rehiring of Federal Workers
In cases brought by state attorneys general and federal unions, two different federal trial court judges issued orders requiring the rehiring of thousands of federal workers who were fired in the early days of the Trump Administration. These decisions will inevitably be challenged on appeal. Furthermore, they provide no guidance on how the federal government "reinstate” affected workers, although one of the judges noted that remediation “will itself be a significant task.” Indeed. For nonprofits is that depend on the federal government for money or expertise, there is absolutely no guarantee that either will be effectively reinstated. The federal government's expertise has been wounded. Perhaps other institutions will swiftly rise that fill that gap.
Again, I understand how hard it is to feel sorry about bureaucrats being shown the door. I have always laughed along with others at the old saw, "How many people work in the federal government? Oh, about half." There is room aplenty for a reasoned discussion about federal bloat and what to do about it, and the nonprofit sector would likely have some choice words to add to that discussion. But what has been going on is inexcusable. A president assumed office after an actual but modest electoral victory. That does not entitle him to break the law and norms of civil conduct. It does not entitle a Congress to cede its constitutional authority to participate in important decisions about federal priorities and how to achieve them. And it should not prevent us as citizens from recognizing that this is objectionable behavior—and taking action in opposition.
There is a minor and a major call to action here. The minor one? What's happening in San Diego is going on elsewhere. What’s happening in your community? Please let me know so that I can spread the word.
The broader call to action is this. We have some six months. Six months in which to reconcile nonprofits’ activities with a world in which federal policy will reduce resources for most nonprofits’ beneficiaries and directly cut resources to many nonprofits. Or six months to adopt contingency plans to address what will be the mother of all government shutdowns, likely accompanied by political and social unrest. Or six months to take actions, in my worst scenarios, for the creeping manifestations of authoritarianism. Let’s use this time wisely.
Six months, moreover, may overstate the window for preparation and response. On April 19th, federal workers taking early retirement will separate from their positions. By June 1, if not earlier, nonprofits and society at large will begin to feel the effects of those federal firings and retirements on their daily lives. On things we have come to expect, like reliable weather reports or confidence that every flight into a commercial airport is directed by an actual air traffic controller.
There is no time to waste. Scenario plan now. Prepare for a potentially very different tomorrow. Today you may not think that you need a reduction-in-force plan, a revised (and significantly reduced) budget, an emergency reserve strategy, a strategy for dealing with the fact that your beneficiaries are under increased stress and need more of your support, or even a plan for merging your operations with another nonprofit. You will be better served by considering those possibilities now, however, than trying to face those possibilities in the stress of the moment.