Back in March, this blog posted that "Trump's Secretary of Transportation orders review of the USDOT grant that Alameda already won" regarding federal funds that USDOT staff directed toward repaving and safety improvements along Alameda's Lincoln Ave. corridor.

At this evening's Transportation Commission meeting, city staff will share an update that is troubling but not surprising:

Given the change in the federal administration, some of the new federal grants contain new conditions that are inconsistent with City policy and State law, such as requirements to cooperate with immigration enforcement and anti-[diversity, equity, and inclusion] programs.

There are multiple pending lawsuits challenging these federal conditions, including one brought by the California Attorney General.

The City Attorney is analyzing whether the City's legal interests are protected under this existing litigation or whether the City should formally join the litigation as a party.

Joining one of these legal challenges could potentially allow the City to enter into the USDOT grant while reserving the right to challenge any unconstitutional federal conditions.

Federal agencies have previously used the carrots and sticks of transportation grant programs to promote changes at the state and local level:

• For instance, in 1984 Congress and the Reagan administration cajoled states into raising and standardizing their legal drinking ages by passing a law reducing federal highway apportionment by 10% to any states that didn't adjust their own drinking-age laws to 21 years.
• The Supreme Court upheld the National Minimum Drinking Age Act and (in the words of Wikipedia) "established a five-point rule for considering the constitutionality of expenditure cuts of this type":

1) The spending must promote "the general welfare."
2) The condition must be unambiguous.
3) The condition should relate "to the federal interest in particular national projects or programs."
4) The condition imposed on the states must not, in itself, be unconstitutional.
5) The condition must not be coercive.

There are many differences in mechanics and in motivations between that example from the '80s and the current attempts by Trump's Secretary of Transportation (who got his professional start as a star on MTV's Real World and simultaneously now holds the title of acting Administrator of NASA) to add extraneous requirements into standard grant contracts. The most critical difference is that Congress actually passed a law in the earlier example, while this Congress intentionally takes zero active actions and this is merely the action of the executive branch's political appointees. Another key difference is that the Supreme Court determined that a 10% decrease in funding was not coercive (a 100% decrease by reneging on a grant award would presumably be coercive). Leaving aside those and other key differences, it's worth focusing in particular on the Supreme Court's middle criteria:

3) The condition should relate "to the federal interest in particular national projects or programs."

A state's legal drinking age is of clear relevance to federal interests in highways.

But does the federal interest in repaving Lincoln Ave and upgrading its safety features relate to the rounding up of people with brown skin? (Pardon me, "immigration enforcement.")

Does the federal interest in repaving Lincoln Ave and upgrading its safety features relate to the removal of equal employment opportunity protections from local laws? (Pardon me, "anti-DEI.")

In June, a US District Court judge answered these sorts of questions with a preliminary "no" according to Bloomberg Law:

Judge John J. McConnell Jr. said California and the other states are likely to succeed on their claim that the DOT funding conditions are outside the agency’s authority because Congress appropriated the funds for transportation, not immigration, purposes.

“Congress did not authorize or grant authority to the Secretary of Transportation to impose immigration enforcement conditions on federal dollars specifically appropriated for transportation purposes,” the judge wrote.

He also found the new conditions likely arbitrary and capricious under the Administrative Procedure Act and a violation of the US Constitution’s Spending Clause.

Unfortunately, like most questions of national significance these days, the ultimate fate of these questions — and more — may have to be decided by voters in a subset of states and Congressional districts in 2026 and 2028.

In the meantime, the City of Alameda will do well to lawyer up, become a party to relevant lawsuits, and move forward with grant-funded infrastructure and traffic safety improvements without fear or favor.