President Trump recently issued an executive order directing the Justice Division to penalize jurisdictions that enable cashless bail, by withholding federal funds from them:
On Monday, President Donald Trump, who has called cashless bail a “government-backed crime spree,” signed an executive order to finish the coverage nationwide. The order restricts the allocation of “Federal insurance policies and sources” to jurisdictions and states with cashless bail insurance policies for “crimes that pose a transparent risk to public security and order.” It duties Lawyer Basic Pam Bondi with creating an inventory of such jurisdictions inside 30 days, at which level the federal funds of those jurisdictions could also be suspended or terminated.
Like a variety of different Trump insurance policies, that is concurrently an assault on federalism and an try to usurp Congress’ spending energy. Supreme Court docket precedent – most of it authored by conservative justices – holds that solely Congress can impose situations on state and native governments receiving federal grants, and people situations should be clearly acknowledged within the statutes allocating the funds. There are a selection of different constitutional constraints on grant situations, as properly.
This problem has come up most frequently with Trump’s efforts to make use of grant situations to coerce sanctuary cities, which restrict state and native regulation enforcement help to federal immigration enforcement operations. See my Texas Law Review article on the quite a few defeats Trump suffered in his first time period, on this problem. That has continued with a number of courtroom selections ruling in opposition to comparable makes an attempt to coerce sanctuary cities in his second time period (see my analyses here, here, and here).
As famous in my November 2024 post on sanctuary cities and conditional grants, longstanding Supreme Court docket precedent holds that situations on federal grants should 1) be enacted and clearly indicated by Congress (the chief can’t impose its personal grant situations), 2) be associated to the needs of the grant in query, and three) they need to not be “coercive.”
All of those constraints apply to Trump’s assault on cashless bail, as properly. Few, if any, federal grants have congressionally enacted situations limiting cashless bail. And if we’re speaking about grants that aren’t intently linked to regulation enforcement functions, imposing such situations would violate the relatedness requirement. And if Trump needs to tug all or most grants from such jurisdictions, that’s more likely to violate the admittedly obscure “coercion” constraint.
As well as, that is an try to insert the federal authorities in a core conventional space of state and native authority. Few powers are extra central to state and native autonomy than management over state legal regulation enforcement. I am sufficiently old to recollect a time when conservatives cared about limiting federal intrusion on areas of state autonomy. This can be a fairly blatant instance.
This order also needs to be seen within the context of Trump’s broader assault on Congress’s fiscal authority. The Structure clearly provides Congress, not the chief, energy over taxation and spending. But Trump has sought to impose unilateral government situations on grants, withheld funds allotted by Congress, usurped authority over tariffs on a massive scale, and imposed unconstitutional export taxes. This bail measure is one more usurpation.
The Framers of the Structure rightly needed to keep away from giving energy or taxation and spending to anybody man. They remembered the abuses of monarchs such as Charles I. We might do properly to heed that knowledge, too.
The courts have, in lots of circumstances, curbed Trump’s fiscal energy grabs. However Congress also needs to act. Sadly, the GOP congressional management has largely both ignored Trump’s usurpation of legislative authority or actively applauded them.
In contrast to within the case of sanctuary cities, which I’ve lengthy defended on a variety of grounds, I haven’t got a lot in the best way of robust views on bail coverage, and am not an professional on the topic. However the problem of when to grant bail or deny it’s one the Structure leaves to the states, no less than on the subject of state crimes.
I’ll solely add that there’s a important civil liberties angle right here. In a free society, there ought to be a powerful presumption in opposition to detaining or imprisoning individuals who haven’t been convicted of any crime. The presumption is perhaps overcome in circumstances the place a suspect poses some grave risk to public security or can’t in any other case be prevented from fleeing the jurisdiction. However overcoming it ought to no less than require a compelling exhibiting that there’s a grave risk or a flight danger. Requiring fee of bail is just not as coercive as pretrial detention with out bail. However there could also be little distinction between the 2 in circumstances the place the suspect is indigent or doesn’t have prepared entry to money.
If the defendant is convicted, time spent in pretrial detention could rely in opposition to his or her sentence. However that’s little comfort if the suspect is acquitted or if they’re sentenced to a high quality or probation.
In sum, I’m not certain what the optimum bail coverage is. However there’s motive to be cautious of sweeping rejection of cashless bail. There’s much more motive to be cautious of this administration’s ongoing assaults on federalism and makes an attempt to usurp Congress’s fiscal authority.
