Last 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 [HBCUs] "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. Non-black 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 non-black 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 non-black 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 cut-off 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.