Monday, May 08, 2017

Trump Signing Statement Threatens the Continued Existence of Historically Black Colleges and Universities

by Michael Dorf

On Friday, President Trump signed a bill funding the federal government through the fall. Following a potentially troubling practice that gained attention under President George W. Bush (and continued under President Obama), Trump accompanied his signature with a signing statement that announced that his administration would "construe" various provisions in accordance with various constitutional limits. On its face, that is reassuring rather than troubling. A president is sworn to faithfully execute the law, and in the U.S., statutory provisions that contravene the Constitution are not law. Thus, few would object--indeed most everyone would laud--a president who declined to enforce or comply with a blatantly unconstitutional law.

The difficulty arises when the president, in a signing statement and thereafter in practice, asserts a power to disregard a statutory provision based on a tendentious constitutional understanding. That's what Bush did with respect to the so-called McCain Amendment barring torture. He asserted power not to comply with the interrogation limits based on an expansive and highly controversial understanding of executive power. When a president asserts a power either not to enforce or not to comply with a statute based on a highly idiosyncratic view of the Constitution, he threatens to undermine separation of powers. Rather than carrying out his duty to take care that the laws be faithfully executed, he violates that duty.

Like the Bush statement on torture, Trump's signing statement makes broad claims of the power to disregard the law, based on similarly tendentious views about the Constitution. Here I will focus on one such view: the suggestion that federal funding of capital improvements at historically black colleges and universities "allocate[s] benefits on the basis of race" and therefore runs afoul of "the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution's Fifth Amendment." As I shall explain, the suggestion is wrong, but if it were right it would have far-reaching consequences for the HBCUs' very existence.

The signing statement is, on its face, a headscratcher. Allocating money to HBCUs does not amount to allocating money "on the basis of race," because HBCUs do not exclude anyone based on race. Nonblack students are in the minority at HBCUs but their numbers are more than trivial. In any event, admissions policies at HBCUs do not substantially disadvantage nonblack students. So why does the signing statement seem to assume otherwise?

If the signing statement had been written by Trump, we would have our answer: gross ignorance. But the statement obviously wasn't written by Trump, because it uses multi-syllable words and proper grammar. It's possible that the signing statement was written by someone with some legal knowledge who nonetheless did not bother to learn anything about the admissions policies of HBCUs. As I noted last week, there is a great deal of incompetent lawyering in the Trump administration. However, while we should not rule out simple incompetence as an explanation, perhaps there is something more sinister at work.

Could one argue that even though HBCUs are open to nonblack students, their history, mission, and marketing make them a legacy of segregation? HBCUs are "historically" black because they date from a time when African American students were excluded from "historically white" colleges and universities. Just as a formerly de jure segregated school district has an obligation not only to stop applying racial criteria in assigning students to segregated schools but must affirmatively root out the vestiges of the de jure system, so it could be argued that public money spent at HBCUs perpetuates the legacy of segregation.

There are two difficulties with this argument.

First, the Supreme Court pretty squarely rejected it 25 years ago in United States v. Fordice. There the Court acknowledged that some policies with respect to state HBCUs could indeed be regarded as perpetuating a legacy of de jure segregation and declared that such policies are invalid. However, no justice thought that HBCUs were in themselves an impermissible legacy of segregation. Justice Clarence Thomas--then, as now, the most conservative member of the Court--wrote a thoughtful concurrence stressing that HBCUs are constitutionally permissible. No one disagreed. Accordingly, if the Trump administration takes the view that the mere provision of funds to HBCUs for capital improvements amounts to unconstitutional allocation of benefits based on race, then its constitutional view is not just idiosyncratic but extremely so.

Second, if providing capital funds to HBCUs is unconstitutional because of the role that race plays in the decisions of students to attend HBCUs, then the signing statement implies not only that the federal capital funding is unconstitutional; it implies that state HBCUs are unconstitutional and all public funding of private HBCUs is illegal.

State-run HBCUs would be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Meanwhile, private HBCUs would be in violation of Title VI, which applies the constitutional equal protection standard to private recipients of federal aid. Given the breadth of the statutory definition of federal aid recipients, that covers most private (as well as public) colleges and universities.

Accordingly, if Trump's signing statement reflects his administration's actual policy, then the Department of Education could be expected to cut off not only the funding provided to HBCUs for capital projects under the new spending bill but to cut them off from federal funds entirely. State HBCUs would be required to close their doors; private HBCUs could, in theory, remain open, but few if any would survive the federal funding cutoff that would put them at a serious competitive disadvantage relative to other colleges and universities.

Thus, one is left hoping that insofar as the signing statement applies to HBCUs, it reflects either ignorance or bluster on the part of Trump and his lawyers.


Shag from Brookline said...

What if Trump's signing statement is "bluster" aimed at appeasing Trump's voting base of the "Forgotten" relying upon President Trump to address the impact of the changing demographics as well as to soothe the negative impact of the House's "Repair/Replace" Bill on Trump's "Forgotten"? Hopeful?

Joe said...

The signing statement could be the subject of numerous blog posts at Take Care, ACS Blog and other locations. Lot of material.

David Ricardo said...

The case can be made that the signing statement is neither the result of incompetence or bluster on the part of the administration but rather is a coded message sent to two separate groups. The first group, the African American community is getting the message that “if you people do not go along with the Trump administration we can destroy HBCU’s that are so important to you. So watch your step”.

The second group is the white supremacists and anti-black voters and groups who supported Trump in the election. The administration is telling them “hey, we recognize and acknowledge you and we are on your side even if we can say it directly”. The signing statement is a specific and deliberate message to those people whose support the Trump campaign courted during the election and whose support they want to continue.

rik99 said...

David Ricardo's post, especially the first paragraph, has considerable insight. Trump has expressed his admiration for Andrew Jackson, so perhaps he is trying to extend the Jacksonian "spoils system" from patronage in the government to withholding benefits from the population who do not support Republicans. Besides trying to eliminate HBCUs to punish the African American community for voting Democratic, he also proposed eliminating the state and local tax deduction which would preponderantly affect populations in Democratic leaning states.

Shag from Brookline said...

David, in your second paragraph quote, "can" I assume should be "can't."

By the way, I assume that there are precedents in the Executive Branch. Have any presidents prior to Trump in undertaking the Constitution's Take Care duties concerning federal laws dealing with HBCUs made such a reservation as Trump did? Trump's signing statement is a "dog whistle" to many in his voting base that can be heard beyond that base. While Mike observes:

"But the statement obviously wasn't written by Trump, because it uses multi-syllable words and proper grammar."

the thrust of the words are far from subtle. I'm reminded of the ceremony in the Oval Office featuring Kellyanne Conway, now a feature on SNL in a new game show.

Perhaps Trump's signing statement is intended to serve as a distraction to the reaction to the House "Repeal/Replace" Bill and perhaps the Kushner/China appetizing conflicts of interest involving investment visas for wealthy Chinese families, a form of legal immigration while it lasts. Republican President Calvin Coolidge has often been quoted as saying "The business of America is business." * Consider the economy he handed off to Republican President Herbert Hoover in 1929. Some might say Trump has expanded Coolidge by inserting "family" in the quote before the second "business." Is this "The Second Gilded Age"? And keep in mind that the Bush/Cheney Great Recession was only a decade ago.

*A Google search indicates that Coolidge said: “the chief business of the American people is business.” How was business when he handed off the presidency to Hoover in March of 1929? It wasn't that long a way to October 29, 1929.

Joe said...

See NYT article: "Trump Walks Back Threat to Defund Black Colleges."

Shag from Brookline said...

Joe, how many walk-backs is that in 108 days? Or is Trump practicing moonwalking, politically speaking?

Joe said...

Some try to track his lies, so maybe someone has a list of walk-backs.

The referenced Thomas concurrence seems topical in more ways than one.

"As long as that intent remains, of course, such a policy cannot continue. And given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time, both because the State has created the dispute through its own prior unlawful conduct [cite omitted] and because discriminatory intent does tend to persist through time."

The appeal to "institutional diversity" is also appreciated though like his citations of history in other contexts, his understanding might be different than others.

Shag from Brookline said...

This from the Thomas concurrence:

" ... because the State has created the dispute through its own prior unlawful conduct [cite omitted] and because discriminatory intent does tend to persist through time."

could be readily applied to the long history of Jim Crow. Did Justice Thomas have this in mind?

Shag from Brookline said...

Wasn't it done face to face on the Apprentice at the end of an episode? Imagine firing the guy with a letter to his office when he was away on a trip that brung him to Nov. 8th many months later. Might the dossier come to life?