President Donald Trump listens as Homeland Security Secretary Kristi Noem speaks during a tour of “Alligator Alcatraz,” a new migrant detention facility at Dade-Collier Training and Transition facility, Tuesday, July 1, 2025, in Ochopee, Fla. (AP Photo/Evan Vucci).
A federal judge on Tuesday upbraided the Trump administration for violating a court order by trying to illegally coerce states into enforcing federal immigration priorities in exchange for disaster aid from the Federal Emergency Management Agency (FEMA).
In the underlying litigation, the plaintiffs, led by Illinois, allege the “grant funding hostage scheme” violates the U.S. Constitution”s spending clause as well as numerous aspects of the Administrative Procedure Act (APA), the federal statute governing agency behavior.
On Sept. 24, U.S. District Judge William E. Smith, a George W. Bush appointee, agreed with the plaintiffs. The court bemoaned the state of affairs as “unduly coercive and invalid” and unconstitutional, as well as “arbitrary and capricious” under the APA.
Earlier this month, the plaintiffs complained again in a motion to enforce or clarify the September order — alerting the court to a series of suspicious phrases and terms included “in all grant awards issued under several major preparedness programs administered” by FEMA.
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Largely gone are the phrases typically associated with legal mandates, a redline document tracking changes to the awards shows. Still, the government-issued documents attempt to enforce those immigration priorities with less-definitive but still strong language.
For example, terms like “must” are replaced with terms like “will” in some instances. Meanwhile, the term “must” is added into other locations. Additionally, some certification language has been deleted from some sections of the awards while added to other sections.
Another addition, however, retains substantially similar language of enforcing the Trump administration’s immigration priorities, but makes compliance conditional on a favorable court ruling.
The motion to enforce or clarify explains, at length:
In the week after the Court entered judgment, defendants copy-pasted the Contested Conditions into a new grant term…In a gesture at compliance with the judgment, defendants temporarily stayed the operation of this Immigration Compliance Article, but with a trigger clause that will cause it to snap into effect “immediately” “[i]f the injunction is stayed, vacated, or extinguished.” Plaintiff States are, as a result, still required to certify, as a condition of obtaining federal funds, that they will be in compliance with the Immigration Compliance Article immediately upon any interruption of the Court’s injunction.
Now, in a three-page order enforcing the judgment, Smith framed the new language as a clear violation of his earlier order.
“Despite the Court’s order, Defendants have now inserted the contested conditions into Plaintiff States’ award letters for DHS grants,” the enforcement order reads. “To accept these awards, Plaintiff States must therefore agree to comply with the contested conditions.”
Smith also criticizes the new DHS award letters for attempting to impose an unstated “condition precedent” on the plaintiffs, accusing the government of trying to force the states to agree to comply with language that has already been vacated — or legally nullified — under the APA but which might be revived at some later date by some later court. The judge, in trenchantly cutting language, is not amused.
“In effect, Defendants have done precisely what the Memorandum and Order forbids, which is requiring Plaintiff States to agree to assist in federal immigration enforcement or else forgo the award of DHS grants,” the order continues. “The fig leaf conditional nature of the requirement makes little difference. No matter how confident Defendants may be of their chances on appeal, at present, the contested conditions are unlawful. Plaintiff States therefore have a right to accept the awards without regard to the contested conditions. Defendants’ new condition is not a good faith effort to comply with the order; it is a ham-handed attempt to bully the states into making promises they have no obligation to make at the risk of losing critical disaster and other funding already appropriated by Congress.”
The court goes on to reiterate that the prohibited conditions are already defined in the September order but equates them with the new language included in the latest batch of award letters — separately setting aside and vacating the new language as well.
In addition, the relatively terse order issues a new injunction, permanently barring the Trump administration from “enforcing against Plaintiff States and their instrumentalities and subdivisions” any of the conditions at issue in the litigation or “any materially similar term requiring cooperation with federal immigration enforcement as a condition on federal funds.”
The government now has until Oct. 21 to rescind the old award letters and issue new award letters without such prohibited language.
