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American Federalism: October in Review

In This Edition


  1. Campus Compacts: are they Constitutional?

  2. Guard Deployments: will they continue to be narrowed?

  3. FEMA Controversy: why critics are charging Trump with "bullying" states by attaching conditions to aid

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Federalism Flashpoints


Our newsletter is getting an upgrade. Each month we will now be highlighting a selection of the most important questions and controversies relating to states, federalism, and the increasingly precarious federal-state balance. We present competing constitutional and political perspectives, with links to readings and an analysis of how these issues affect the principles of American federalism.


October in Review


In this issue we cover new developments with "Campus Compacts," the federalization of the National Guard, and we summarize recent court decisions related to the use and abuse of FEMA aid conditions.


As we roll into November, it should at least be mentioned that we are currently in the middle of a government shut down. At 26 days and counting, the 2025 shutdown is already among the longest on record:



Issue 1: Are Campus Compacts Constitutional?


On October 1, 2025, the Trump administration sent a “compact” to nine top universities, offering preferential federal funding if the institutions agreed to specified policy reforms.


  • A “campus compact,” in this context, is a formal agreement between a higher-education institution and a governmental entity by which receipt of public funds is conditioned on the institution’s adoption of particular operational, admissions, or governance standards. Read the full "Compact for Academic Excellence in Higher Education"


Proponents of the recent compact argue that they reflect a legitimate exercise of the federal spending power and campus oversight -allowing the government to set terms for institutions that choose to accept its funding while preserving institutional autonomy for those that decline. The Compact for Academic Excellence promotes:


  • equality in admissions (eliminating discriminatory admissions processes)

  • strong protections for the "marketplace of ideas"

  • nondiscrimination in faculty and administrative hiring

  • institutional neutrality

  • grade integrity and student learning

  • equal treatment of students regardless of "immutable characteristics"

  • financial responsibility

  • no foreign entanglements

  • enforcement mechanisms to ensure university's performance against the conditions of the compact


On its face, the compact is laudable. The United States has a national interest in maintaining its higher education system as the "envy of the world."


More college leaders, however, have been speaking out against provisions in the compact, including the penalty that universities would have to "forego federal benefits" if they don't sign.


Some critics contend that these agreements trigger the unconstitutional-conditions doctrine by effectively compelling institutions to forgo core academic freedoms in exchange for subsidies, thereby undermining the “marketplace of ideas” that the First Amendment and institutional self-governance are meant to protect.


Others have expressed concerns over the rollout, noting that there is no formal process either to apply (agree) with the compact or to reject it, in advance.


Update:


As of writing, October 30, 12 Universities have rejected the "campus compact":





Conclusion


The short answer is No: the Campus Compact is not unconstitutional on its face. However, the use of compacts like this do raise a number of constitutional concerns (see below). And while many believe that the Trump Compact creates a much needed "fresh relationship" between America and higher education, even those favorable to the idea are wary of the unintended (future) consequences of the use of such agreements. At minimum, the compact does apply significant pressure for universities to forego federal benefits if they develop "models and values" different than that of the administration. Some analysts insist that the Compact violates not only the First Amendment but also the separation of powers and constitutional constraints on executive power, as well as constitutional limits on federal spending power.


The compact is unprecedented. It would place both private and state universities under invasive federal control, allowing the government to dictate acceptable fields of study and academic departments as well as the appropriate mix of viewpoints among faculty, students, and staff. The compact threatens that universities that do not agree to its terms will lose federal funding...Adopting the compact would destroy academic freedom and university autonomy and undermine the expertise and academic excellence that have made American higher education the envy of the world. Regardless of the merits of the compact’s individual policy proposals, they should not be imposed by fiat or accomplished through a federal takeover of institutions of higher education.

Aside from these concerns, others have raised the important question of how and whether Campus Compact could infringe on a number of State constitutions and state laws.


Further Reading



Issue 2: Can the President Federalize the National Guard Without State Consent?


On October 15, 2025, President Donald Trump invoked emergency authority to federalize National Guard units from five states to assist with immigration enforcement operations along the southern border.


  • A federalization order, in this context, is a directive by which the President transfers state-controlled Guard units (ordinarily operating under Title 32 of the U.S. Code) to federal status under Title 10, thereby making them part of the active-duty armed forces under presidential command.


Proponents argue that such authority is rooted in Article II’s Commander-in-Chief power and 10 U.S.C. § 12406, which allows the President to call the Guard into national service “to repel invasion” or “enforce the laws of the United States.”


As justification, the president has pointed to crime rates in affected cities, in conjunction with the need to protect federal buildings and federal officials involved in immigration enforcement. Attorneys arguing in defense of President Trump's actions before the United States Court of Appeals for the Ninth Circuit have argued that the condition of "rebellion" applies in Portland. They contend that in cases of national emergency, state consent is not required, and that unified command ensures efficiency, discipline, and national security.


Critics counter that this could represent a dangerous expansion of executive power- one that blurs the constitutional boundary between state militias and federal armed forces. Skeptics and opponents have argued that the Constitution does not grant the president authority to call military troops into domestic federal service (pointing instead to Congress' power to "call forth the Militia to execute the laws of the union, suppress Insurrections and repel Invasions.") They believe that Congress should issue the call first, and only then would the president have the authority to command the troops under Article 2.


Others have argued that federalization violates the Tenth Amendment and the Militia Clauses (Art. I, § 8, cls. 15–16), which reserve substantial authority to the states over their Guard units except in narrowly defined circumstances, and that the routine use of federalization undermines state sovereignty and local accountability.


Some now claim that the Posse Comitatus Act, which bars the president from using the military for civilian policing, is the chief "legal hurdle" for Trump's continued use of the troops in certain states.


Updates:


  • A recent poll shows that 38% of Americans support deploying National Guard troops to a major city for law enforcement efforts.

  • An October memo indicates that the Pentagon has plans to order the national guards of all 50 US states to form "quick reaction forces" trained in riot control. Most states would be required to train 500 national guard members for a total of 23,500 troops nationwide.

  • In late October, the Supreme Court has requested further information in the case concerning the deployment of the National Guard in Illinois. This may push the decision back further than anticipated, likely mid-November or later.


Conclusion


The legal challenges in Los Angeles, Portland, and Chicago turn on slightly different questions. In Chicago, Trump is being challenged on whether the administration has made "false claims" about the need to deploy troops, as well as 10th Amendment claims to self-governance. In Portland, disputes revolve around ICE-related protests in the city. A judge argued that the Trump deployment was "untethered to the facts" and therefore lacked the authority to federalize the Oregon Guard. In Los Angeles, one judge found that conditions in LA warranted Trump's use of Title 10, while another found that Trump's use of the military violated the PCA.


In response to recent court decisions, senior White House officials have raised the possibility of invoking the Insurrection Act.


The last use of the Insurrection Act was in May 1992.


As these trials proceed and appeals unfold across multiple states, it is worth remembering that -quite apart from the constitutional questions-the deployment and federalization of the National Guard ought not become routine.


The President's authority to call out the Guard is significant, but it is not a blank check.


Further Reading



Issue 3: FEMA Conditions: Can disaster aid hinge on unrelated enforcement priorities?


On September 7, 2025, the Federal Emergency Management Agency (FEMA) announced new eligibility conditions for states seeking federal disaster relief funds. Under the new policy, states receiving FEMA assistance after hurricanes, wildfires, or floods must adopt specified emergency-management reforms - including standardized evacuation protocols, data-sharing requirements with DHS, and uniform training standards for National Guard disaster units. In some cases, the aid depends on cooperation with immigration policy.


  • A FEMA condition, in this context, refers to a policy requirement attached to federal disaster relief funds, imposed as a prerequisite for states to receive emergency support. FEMA funding flows under the Stafford Act, which authorizes federal aid in declared disasters but traditionally leaves operational control and emergency planning to the states. Importantly, it requires disaster assistance to be provided in an "equitable and impartial" manner.


Fema Conditions Controversy


The controversy over conditions on aid is not entirely new. In January, President Trump indicated that aid for fires in California could be tied to voter ID. He also tied in the issue of water management, demanding that “the water be released and come down into Los Angeles and throughout the state” as another condition. California officials, including Gavin Newsom (the governor), strongly pushed back. The governor’s office said “conditioning aid for American citizens is wrong.” Analysts at the time called the threat dangerous, on the grounds that it would undermine the principles of American federalism.



From the article:

The administration’s attempt to extract promises from states in exchange for federal funds also disregards established law preventing federal overreach into state matters. 

Immigration


On October 22, Trump declared that he had approved federal aid for North Dakota, Missouri, and Alaska, while denying aid to Illinois, Vermont, and Maryland. In both cases, the President appears to be willing to tie disaster aid to "cooperation" with federal policy, in these cases, on cooperation with immigration and ICE operations in those states. Maryland Governor Wes Moore expressed frustration recently, arguing that Trump's moves had "politicized disaster relief."


Defenders of the president's action here argue that conditions fall squarely within Congress’s spending power and FEMA’s statutory mission to ensure “efficient and coordinated” disaster response. Supporters contend that national emergencies require national standards - especially when failures in one state can place burdens on others, such as in wildfire smoke, interstate power systems, and mass-evacuation corridors. They also note that the Supreme Court has long upheld conditional federal spending when tied to a legitimate federal interest and is not coercive.


Critics counter that the policy represents an aggressive expansion of federal leverage in a domain historically led by states. They point to Tenth Amendment principles and argue that conditioning emergency relief - often needed immediately and desperately - coercing state compliance rather than encouraging cooperative federalism. Leading cases on conditional spending, like South Dakota v. Dole affirm that conditions to the receipt of federal funds must "promote the general welfare," be related to a "national concern," and must be unambiguous. Most importantly, the spending condition must be related to the policy goal, whether it's safer highways or anything else.


Update:


  • As of writing, seven governors have issued formal objections to the FEMA policy, arguing that emergency relief funds are not “optional grants” but essential support in moments of crisis. Several states have threatened litigation, claiming the conditions resemble the unconstitutional “economic dragooning” language used in NFIB v. Sebelius.

  • A leaked DHS planning memo suggests future FEMA funding rounds may tie aid to additional resilience benchmarks, including energy-grid modernization and cross-state evacuation planning, signaling that conditional relief may become a more regular tool of federal emergency governance.


Conclusion


Answering the legal question (are spending constitutions lawful and Constitutional?) turns on familiar tests: whether conditions are clearly stated, tied to a legitimate federal interest, and if they avoid coercion by offering a meaningful choice. Recent cases seem to have leaned in favor of the states, against the administration:


  1. In a case brought by 20 + states (mostly Democratic-led) in the U.S. District Court for Rhode Island, Judge William E. Smith ruled that FEMA / DHS cannot condition its grants on states’ cooperation with federal immigration enforcement. The decision held that the condition requiring states to assist with federal immigration enforcement to receive FEMA/DHS grants was unconstitutional and violated the APA (Administrative Procedure Act).

  2. In September, U.S. District Judge Mary McElroy issued a restraining order blocking the administration from steering ~$233 million in FEMA disaster relief funds away from 12 states. The court found the abrupt redirection appeared plainly illegal and likely politically motivated.

  3. On October 14, Judge William E. Smith found the administration violated a previous order by issuing new FEMA award letters with nearly identical immigration-cooperation conditions (although with clause saying they would take effect if his ruling was overturned). The ruling held the “fig-leaf conditional” nature of the requirement did not matter: it was effectively coercive and unlawful.


To summarize, Trump’s use of FEMA funds as leverage for state policy continues to face much-deserved scrutiny, from a federalism point of view.


Recent rulings have reaffirmed that federal agencies may warn states of conditions tied to federal programs. But that authority has limits. Conditions must be "germane" and applied neutrally. As new cases arise, states should continue to be alert to the instances in which pressure turns into compulsion.


The need for state flexibility in disaster response is not imaginary, but neither are the concerns from states about the use of FEMA conditions to "bully" them into compliance.


Further Reading













 
 
 

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