Our system of government is based on distrust. We revolted against a monarchy and decided to decentralize power, with the hope that bad people and bad decisions are less likely to wield actual power. We not only divide power among three branches of government, but we also divvy up power between a federal government and state governments. 

You can be forgiven if you think our system of horizontal separation (three branches of government) and vertical separation (federal and state governments) is collapsing all around us. The enlargement of the executive branch, to the detriment of the legislative branch and the states, didn’t begin with President Donald Trump. And it won’t end with him unless Congress and the states reclaim their constitutionally endowed power, or judges and the public push presidents back into their lane.  

If any government entity wants to put these conditions on the receipt of federal funds, it should be Congress, and not the executive branch through the U.S. Department of Agriculture.

Recently, a federal judge did just that and pushed back against the Trump administration’s attempt to condition $74 billion in nutrition and farm aid to states — including Supplemental Nutrition Assistance Program (SNAP) benefits — on the states’ decision to acquiesce to Trump administration policies on transgender people; diversity, equity and inclusion; immigration enforcement; and other topics. We are, to be clear, talking about money that goes to feed the poorest among us, including tens of millions of children. 

U.S. District Judge Myong Joun, who has apparently read the Constitution, put at least a temporary stop to the administration’s attempts to coerce the states into action. 

The case involves a suit by 20 Democratic attorneys general and the District of Columbia against the Trump administration. Their claim is straightforward: The Trump administration said states and D.C. won’t receive money to feed poor families and farmers unless they comply with the Trump administration’s policy priorities. 

As an initial matter, those challenging the Trump administration’s actions argue that the conditions on federal grants are so vague that they don’t know which state actions would or would not violate the federal conditions, and could potentially force them to obey requirements unrelated to nutrition and fair aid programs. The lack of germaneness between the purpose of the federal funding program and the requirements the federal government is putting on the states should be enough to kill these additional conditions, but here are some others. 

First, if any government entity wants to put these conditions on the receipt of federal funds, it should be Congress, and not the executive branch through the U.S. Department of Agriculture. The Constitution gives Congress, not the executive, the power of the purse. The president has a role to play, but it is to tell executive agencies to execute spending laws by ensuring executive agencies spend federal funds consistent with those laws. The president can and should propose budget priorities during the budgeting process, and sign or veto spending laws. But once those proposals become law, the president does not have the power to rewrite them to comply with his policy agenda. 

Second, the USDA’s attempt to condition the receipt of vital federal funds violates the Constitution by depriving them of any true choice. Congress — again, generally not an executive agency — can condition a state’s receipt of federal funds on states taking certain actions. But Congress cannot coerce states into doing so. Coercion would amount to the federal government trampling on state sovereignty. Is this really true? Yes, Chief Justice John Roberts told me so. In fact, he told me the federal government can’t put a “gun to the head” of states in an attempt to get them to adopt federal policies to get federal funds. 

The judge’s decision to issue a temporary pause on the Trump administration’s plans could be just that, temporary. But conservatives and liberals alike should hope that the judge’s decision to block this action is permanent. The question is not whether you like President Trump’s policies. The legal answer should be the same if former President Joe Biden had tried to tell the USDA to withhold the same aid from states unless they adopted liberal policies on gun regulation, climate change or abortion access. The question is whether you respect the separation of powers and state sovereignty. 

This is a high-stakes legal question striking at the heart of whether our system of government survives. It is also a high stakes practical question that could determine whether impoverished children and families receive money for food. 

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