Donald Trump, president of the United States and actor in 3 different films that John Hickenlooper might take his mom to see, signed an executive order last Thursday that now requires any university that receives federal research grants to protect free speech on campus. For public schools, this means protecting First Amendment rights, while private schools, the order states, must simply follow their “stated institutional policies regarding freedom of speech.”
The move has raised some questions, like “who will decide what constitutes a violation of this condition?” and “why is this even necessary, don’t universities already have to do the exact things the order says?” (The answers, for those playing at home, are “nobody knows” and “yes, but Trump would appreciate it if you didn’t tell his base.”)
There are legitimate concerns about the order — for example, the case Trump used as an excuse for the order involved a Turning Point organizer getting punched by a protestor at UC Berkley. Neither are affiliated with the university in any way, and it’s difficult to see how any sort of university action could have prevented the incident. If Trump considers what happened at Berkley grounds for withholding funds then we’re edging into dangerous I’ll-just-use-this-as-cover-to-punish-my-enemies territory. But putting that whopper of a concern aside for the moment, there’s one big flaw with Trump’s free speech executive order: it’s probably unconstitutional.
This isn’t Trump’s first rodeo when it comes to adding stipulations to federal funds. He’d previously attempted to cut federal funding to sanctuary cities with an order that was challenged in San Francisco v. Trump. After the United States District Court for the Northern District of California found against Trump, the administration appealed, only to get shut down again by the Court of Appeals for the Ninth Circuit, which stated firmly in its holding that "By its plain terms, the executive order directs the agencies of the executive branch to withhold funds appropriated by Congress in order to further the administration's policy objective of punishing cities and counties that adopt so-called 'sanctuary' policies.”
Supreme Court precedent, most notably in National Endowment for the Arts v. Finley, gives the executive branch some leeway in how it implements existing conditions on federal grants. But the courts have made it absolutely clear that congress is in charge of the budget and only congress can create new conditions for grants. Money appropriated by congress cannot be denied to recipients based on the whims of the president.
Trump’s executive order represents an overreach by the executive branch, perhaps a well-intentioned one, but an overreach nonetheless. The Constitution outlined which branches do what, and the president attempting to perform the duties of the legislative branch is a very troubling notion indeed.
If Trump was really interested in protecting the First Amendment on college campuses he would lobby Congress to pass a bill that ensured that free speech rights were enforced. Of course, that might be a bit difficult to pull off since such laws already exist. But, hey, it’s better to be redundant than unconstitutional.
P.S.: I couldn’t find a way to fit this in the column, but it’s worth pointing out that there already exists a method of policing colleges’ First Amendment violations: the judicial branch. Public universities regularly get sued for restrictive speech codes and invariably lose.
