Workers moving equipment and road signs on a highway. (Getty Images)  

A Rhode Island federal judge seemed likely Wednesday to block the U.S. Department of Transportation’s move to yank billions in congressional funding for bridges, roads and airport projects if Democrat-led states do not partake in federal immigration enforcement.

U.S. District Judge John James McConnell Jr. during a hearing pressed acting U.S. Attorney Sara Miron Bloom on how the Transportation Department could have power over funding that was approved by Congress, saying federal agencies “only have appropriations power given by Congress.”

“That’s how the Constitution works,” he said. “Where does the secretary get the power and authority to impose immigration conditions on transportation funding?”

The suit brought by 20 Democratic state attorneys general challenges an April directive from Transportation Secretary Sean Duffy, a former House member from Wisconsin, that requires states to cooperate in federal immigration enforcement in order to receive federal grants already approved by Congress.

“Defendents seek to hold hostage tens of billions of dollars of critical transportation funding in order to force the plaintiff states to become mere arms of the federal government’s immigration enforcement policies,” Delbert Tran of the California Department of Justice, who argued on behalf of the states, said.

Arguing on behalf of the Trump administration, Bloom said that Duffy’s letter simply directs the states to follow federal immigration law.

McConnell, who was appointed by former President Barack Obama in 2011, said that while the states could interpret it that way, the Trump administration has gone after so-called sanctuary cities and targeted them for not taking the same aggressive immigration enforcement as the administration.

The judge said Bloom’s argument expressed a “very different” interpretation of the directive than how the administration has described it publicly. He also noted President Donald Trump and Homeland Security Secretary Kristi Noem have “railed on … the issues that arise from sanctuary cities.”

Trump this week directed U.S. Immigration and Customs Enforcement agents to target Chicago, Los Angeles and New York — three major Democrat-led cities that have policies to not aid in immigration enforcement.

McConnell said he would make a decision whether to issue a preliminary injunction before Friday. The preliminary injunction would be tailored to the states that brought the suit and would not have a nationwide effect.

The states that brought the suit are California, Illinois, New Jersey, Rhode Island, Maryland, Colorado, Connecticut, Delaware, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, Washington and Wisconsin.

Undermines Congress

Tran said the Department of Transportation’s directive is not only arbitrary and capricious, but undermines congressional authority because Congress appropriated more than $100 billion for transportation projects to the states.

Cutting off funding would have disastrous consequences, the states have argued.

“More cars, planes, and trains will crash, and more people will die as a result, if Defendants cut off federal funding to Plaintiff States,” according to the brief from the states.

Transportation security and immigration

Bloom defended Duffy’s letter, saying it listed actions that would impede federal law enforcement and justified withholding of funds because “such actions compromise the safety and security of the transportation systems supported by DOT financial assistance.”

McConnell said that didn’t answer his question about the secretary’s authority to withhold congressionally appropriated funding.

“It seems to me that the secretary is saying that a failure to comply with immigration conditions is relevant to the safety and security of the transportation system,” Bloom said.

McConnell seemed skeptical of that argument.

“Under that rationale, does the secretary of the Department of Transportation have the authority to impose a condition on federal highway funds that prohibit a state that has legalized abortion from seeking a federal grant?” he asked. 

Bloom said that question was beyond her directive from the Department of Transportation to address in her arguments to the court.

“I understand your question,” she said. “All I think I can say is that here the secretary has, in his statement, set out a rationale for why this is relevant to DOT funding.”

Tran said that the “crux of this case is” that the Trump administration is trying “to enforce other laws that do not apply to these grants,” by requiring states to partake in immigration enforcement.

“It’s beyond their statutory authority,” he argued.

Federal funding for the Washington Bridge demolition and rebuild project faces new uncertainty under new executive directives tying infrastructure grants to states’ cooperation with federal immigration policies. (Photo by Christopher Shea/Rhode Island Current)

This story first appeared on the Rhode Island Current.

There’s no reason why money for road repairs and flood protections should hinge upon states’ cooperation with federal immigration policies, contend 20 Democratic states attorneys general.

That’s why the AGs are asking a federal judge to stop federal agencies from a “grant funding hostage scheme” that requires detaining undocumented immigrants who don’t commit crimes in order to receive key federal grants and aid.

Two new federal lawsuits filed in U.S. District Court in Rhode Island Tuesday against the U.S. Department of Homeland Security (DHS) and U.S. Department of Transportation (DOT) aim to protect and preserve billions of federal dollars already awarded to states for emergency preparedness, disaster relief and infrastructure projects.

Directives issued in April by DHS and DOT secretaries informed states that their federal funding required compliance with federal immigration policies. The AGs — representing Colorado, Connecticut, Delaware, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Washington, Wisconsin and Vermont — allege this violated constitutional protections for separation of powers.

“By hanging a halt in this critical funding over States like a sword of Damocles, Defendants impose immense harm on States, forcing them to choose between readiness for disasters and emergencies, on the one hand, and their judgment about how best to investigate and prosecute crimes, on the other,” the lawsuit against DHS, the Federal Emergency Management Agency (FEMA) and the U.S. Coast Guard, and their leaders, states.

“Defendants’ grant funding hostage scheme violates two key principles that underlie the American system of checks and balances: agencies in the Executive Branch cannot act contrary to the authority conferred on them by Congress, and the federal government cannot use the spending power to coerce States into adopting its preferred policies. Defendants have ignored both principles, claiming undelegated power to place their own conditions on dozens of grant programs that Congress created and bulldozing through the Constitution’s boundary between state and federal authority.”

The AGs say state and local public safety officials have more important work to do than cater to the whims of a new administration, which stand in contradiction to state-level directives like, for example, authorizing licenses for undocumented immigrants. Rhode Island lawmakers granted driving privileges for undocumented residents in 2022, with a July, 1 2023 effective date, joining 19 other states and D.C.

Federal protocols followed by U.S. Immigrations and Customs Enforcement (ICE) and other agencies could force state and local police to use state license laws as a way to find and detain undocumented immigrants.

“As a former U.S. Attorney and former federal prosecutor, I know how many ICE agents are in Rhode Island and it’s under 10,” Rhode Island Attorney General Peter Neronha, said during a virtual news conference Tuesday. “What they need in order to carry out their agenda is for us to do the work for them, pulling us away from important law enforcement work in Rhode Island.”

No state has seen federal funding cut off since directives were issued by U.S. Homeland Security Secretary Kristi Noem and U.S. Transportation Secretary Sean Duffy. Not yet.

States’ abilities to respond to natural disasters and security threats, and complete key infrastructure projects, including the much-anticipated rebuild of the westbound Washington Bridge in Rhode Island, hinge upon a continued flow of congressionally authorized federal grants and aid.

The $221 million Biden-era infrastructure grant awarded to Rhode Island for the Washington Bridge project only became accessible in late March, after weeks of uncertainty in the wake of the administration change. Gov. Dan McKee’s office and the Rhode Island Department of Transportation did not immediately respond to inquiries for comment Tuesday regarding continued access to the funds in the wake of Duffy’s April 24 directive tying federal infrastructure grants to compliance with federal diversity and immigration policies.

The Duffy directive fails to provide any statutory or legal explanation for why transportation funding relates to immigration enforcement. The new requirements  jeopardize more than $628 million in federal funding in Rhode Island, and billions of dollars more across the country, the AGs argue in their lawsuit against Duffy and DOT.

“If Plaintiff States reject Defendants’ unlawful Immigration Enforcement Condition, they will collectively lose billions in federal funding that is essential to sustain critical public safety and transportation programs, including highway development, airport safety projects, protections against train collisions, and programs to prevent injuries and deaths from traffic accidents. The loss of this funding will cause state and local providers to scale back or even terminate many of these programs and projects,” the complaint states. “More cars, planes, and trains will crash, and more people will die as a result, if Defendants cut off federal funding to Plaintiff States.”

The new complaints reprise language of the 20 state AG lawsuits against the Trump administration that preceded them, calling the executive agencies’ actions “arbitrary and capricious” and in clear violation of constitutional separation of powers and spending clauses.

Neronha during the press conference pointed to the success that AGs have had in other lawsuits, temporarily preserving funding and policy protections for education, immigration, research funding, public health, and grants and aid to state governments, among others.

Not that he expects the frenzy of legal activity will abate anytime soon.

“As we stack wins against the Trump administration for violation of the Constitution and other federal laws, what we are seeing is a creeping authoritarianism in this country,” Neronha said. “The president is trying to take power for himself. He’s trying to sideline Congress, and now, he’s attempting to undermine the judiciary.”

Neronha likened the latest federal directives attempting to force states to redirect their own law enforcement to serve federal civil immigration policies to “holding a gun to states’ heads.”

Rhode Island, home to four of the 20 federal lawsuits against the Trump administration already, was again picked as the setting for the latest complaints due to the “strong team” within Neronha’s office, he said.

Neronha and other AGs bringing the two cases against the administration also stressed the sum of their collaborative parts.

“We’ve built the best and biggest law firm in the country, and we’re fighting for all Americans,” Neronha said.

The U.S. Department of Justice did not immediately respond to requests for comment on Tuesday.

The lawsuit against DOT was assigned to U.S. District Chief Judge John Jr. McConnell Jr., while the case against DHS was assigned to Senior District Judge William E. Smith, according to the public court docket.

Rhode Island Current is part of States Newsroom, a national nonprofit news organization.