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The Supreme Court Case De Blasio Is Relying On To Defy Trump


de blasio trump tower

De Blasio emerges from Trump Tower (photo: Ben Max)


Since Donald Trump’s election as the next President, Mayor Bill de Blasio has had to face the reality of a threat he outlined as dire during the campaign. In doing so, de Blasio has met with Trump, spoken of being open-minded about the president-elect, and declared actions his city administration is ready to take if Trump attempts to follow through on some of his most extreme campaign promises.

The most clear threat from Trump to New York City was his pledge to cut off federal funding to so-called sanctuary cities, which are those like New York that welcome and protect undocumented immigrants. While de Blasio gave a speech explaining specific acts of defiance the city is prepared to take against Trump, if federal funding to the city was eliminated, it would cost New York roughly $8 billion, the amount it receives through Washington, D.C. toward its current operating budget of about $83 billion.

However, de Blasio has repeatedly said that, thanks to a United States Supreme Court decision, it wouldn’t be so simple if Trump does attempt to follow through on this threat. While de Blasio is probably right, the court’s 1987 ruling in South Dakota v. Dole does not mean de Blasio has an easy path to beating back federal attempts to cut funding to the city.

Asked about the possibility of federal defunding during his November 18 appearance on WNYC’s The Brian Lehrer Show, de Blasio said, “I think the first thing is to recognize that from what I know so far, because of a decision by the Supreme Court, no President is in position to cut off funding across the board. It has to be very specific to the matter at hand. If we disagree in one particular policy area, you know, there may be opportunities for the federal government to say ‘well we’re not going to fund you in that policy area,’ but not across the board. And I think it’s easier said than done.”

At a press conference a few days later, on November 22, de Blasio was asked for more detail on how he would handle “retaliatory cuts to federal funding.”

The mayor said, in part, “as we’ve talked about before, the last Supreme Court decision constrained the ability of the federal government to cut funding. There are some areas where the federal government can tie funding to certain conditions, but not across the board, not all areas of federal funding. It equates to specific lines of federal funding.”

The mayor hasn’t named the case he’s referred to, but when asked, a de Blasio spokesperson indicated it was South Dakota v. Dole, in which the Supreme Court ruled against South Dakota’s attempt to negate limits on federal funding tied to state policy, but also laid out terms on which Washington could tie appropriations to policy.

In citing South Dakota v. Dole, de Blasio does appear to be on to something. In essence, the court ruled that federal funding decisions tied to specific policies must have a rational and direct connection. As Erin Ryan wrote in 2012 for American Constitution Society, “In South Dakota v. Dole, the Court famously upheld spending power bargaining, so long as the conditions are unambiguous, reasonably related to the federal interest, promote general welfare, and do not induce Constitutional violations.”

Though attempts by a President Trump and like-minded Congress to in one fell swoop eliminate all federal funding to the city would likely be struck down in court, Trump and Congress may be able to systematically eliminate much of what comes to New York while still abiding by the Supreme Court’s South Dakota v. Dole ruling.

Trump and Congress would have to provide justification regarding conditions attached to individual spending appropriations, not blanket reasoning across the board. This would mean the federal government tying sanctuary city policies, like not cooperating with federal efforts to deport undocumented immigrants, to major budget allocations one by one. Big federal dollars currently go to city programs related to education, homelessness, poverty, and law enforcement -- it is not unreasonable to think of connections that can be made in each area. A key aspect of South Dakota v. Dole was the degree to which federal highway funds and the drinking age were related -- the majority saw them as related enough, while the dissenting opinion argued that they were not.

According to a new “initial analysis” of what federal defunding of the city could look like, city Comptroller Scott Stringer’s office said, “cutting off all Federal funds would have a devastating impact on the City’s budget,” especially with regard to agencies and programs that serve “the most vulnerable among us.”

Eleven city agencies, Stringer's analysis explains, that account for 59 percent of all city spending, receive 92 percent of all federal grant money to the city. “Those agencies include the Department of Homeless Services and the Administration for Children’s Services, among others,” the report states. “The NYPD budget for intelligence and counter-terrorism would also be at risk.”

As de Blasio indicated in a speech on Monday, November 21, New York City will be prepared to fight the Trump administration in court. If the next president and Congress do attempt to defund the city over its local policies, it’s likely that the fight would end up in court and be subject to interpretation of the Supreme Court’s ruling in South Dakota v. Dole as it applies to whatever actions the federal government is taking and the city’s relevant policies.

Aides to the mayor did not provide more information when asked how de Blasio became aware of South Dakota v. Dole, whether the Law Department has briefed the mayor on it, and how concerned the mayor is about case-by-case elimination of most federal aid to New York City.

“The mayor will stand tall in the face of any attempt by the president to cut vital services in New York City,” said de Blasio spokesperson Freddi Goldstein in a statement to Gotham Gazette. “We’re preparing cautiously and we’ll respond aggressively, but at this point it’s all speculation.”

A spokesperson for the Law Department said that it is “fully aware of the case.”

De Blasio and others have repeatedly stressed that it is unclear exactly what agenda Trump will pursue. The president-elect is known for altering his stances on issues and he is still filling out his cabinet, members of which will be pivotal in shaping federal policy in the coming months and years. There is little evidence that Trump is backing away from his campaign promises, though he has made more moderate comments in interviews when asked about certain agenda items.

In South Dakota v. Dole, the state challenged 1984 federal legislation that ordered “the Secretary of Transportation to withhold five percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age,” according to a summary from the Chicago-Kent College of Law. At the time, South Dakota allowed those 19 years of age and older to purchase alcohol and filed suit, naming then Transportation Secretary Elizabeth Dole as the defendant, and calling the legislation unconstitutional.

The court ruled seven to two against South Dakota. But in its ruling, it laid out key terms for federal grants to states that are applicable to Trump’s campaign promise and de Blasio’s response. Namely, that conditional federal grants must themselves be constitutional, and that the conditions must relate to the program(s) in question. In South Dakota v. Dole, the Court ruled that federal highway funds and state drinking ages fit the criteria.

During his November 21 speech on New York values, what New Yorkers should do now, and what the city will do if Trump follows through on certain campaign pledges, de Blasio said, “Our constitution says it – that so much of what is decided in the governance of our people is decided at the local level, according to the values of the people who are governed.”

“[W]e will fight anything we see as undermining our values,” de Blasio said. “And here is my promise to you as your mayor – we will use all the tools at our disposal to stand up for our people.” He then pledged, among other things, to “take legal action to block” any federal requirement that Muslims register; to “step in” if the federal government “tries to deport law-abiding New Yorkers who have no representation,” and to “not comply” if the Justice Department “orders local police to resume [unconstitutional practice of] stop and frisk.”

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by Ben Max, Gotham Gazette
     

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Nascent Fund for Public Housing Begins Building NYCHA War Chest


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Tree-planting at NYCHA (photo via NYCHA on flickr)


Five months after the announcement of NextGeneration NYCHA, the comprehensive overhaul plan for New York City’s troubled public housing system, the Fund for Public Housing accepted its first donation. Shola Olatoye, NYCHA Chair and CEO, and Rasmia Kirmani Frye, the founding president of the Fund, welcomed the support for the new public-private partnership that aims to “improve social service delivery and access to economic opportunity for residents.”

In January, the Fund, a 501(c)3 nonprofit, officially began reaching out to donors, and, according to Kirmani-Frye, raised almost $900,000 as of late October. It is an effort to supplement the cash-strapped public housing authority by tapping private donors, attempting to lure philanthropists to NYCHA, where about half-a-million people live.

Public-private partnerships are not new to New York City; former Mayor Rudy Giuliani created the Mayor’s Fund to Advance New York City, and former Mayor Michael Bloomberg created the Fund for Public Schools and the Fund for Public Health. The public-private funds serve to help fill different needs in the city: the Mayor’s Fund is currently focused on youth employment, mental health, and immigration; the Fund for Public Schools helps raise money for banner de Blasio administration programs like Computer Science for All and Pre-K for all; the Fund for Public Health implements targeted programs aimed at reducing asthma in low-income homes or preventing teen pregnancy in the South Bronx.

The Fund for Public Housing, which, according to the NextGen NYCHA goals, aims to raise $200 million in its first three years, will take a modest approach to addressing some of the most pressing needs at the public housing authority, which includes 328 developments and 178,000 units across the five boroughs.

According to Kirmani-Frye, a former director of the Brownsville Partnership, the “three lenses or buckets that we see and fulfill that mission are through people, place, and work.” The Fund could create programs that reach NYCHA residents faster than government initiatives might. NYCHA’s $17 billion capital budget gap is not something that the Fund will address directly, Kirmani-Frye said, indicating the Fund is focused more on programs and policies than physical building needs, as great as they may be.

Some of the largest donations to the Fund have thus far come from major international banks. Deutsche Bank donated $100,000 to update NYCHA design guidelines in order to improve resident quality of life, enhance sustainability, and reduce operating costs. Citi Community Development, a charitable offshoot of Citibank, contributed $250,000 to the Fund to support earned income tax credit access for NYCHA residents through the expansion of the Virtual Vita initiative, a tax preparation program for low-income New Yorkers. Capital One provided $25,000 to establish youth councils in NYCHA.

But beyond the large companies and foundations, the Fund is also looking to drum up support from past NYCHA residents. Olatoye, the NYCHA CEO, said, “the Lloyd Blankfein's and the Jay-Z's of the world” are the types of successful former NYCHA residents who could be especially helpful to their former communities. The Fund is also looking to find donors in “the ordinary folks who are doing great things...who but for public housing, their families' trajectory and their lives would be drastically different,” Olatoye said.

Jeff Levine, the chair of Douglaston Development, Levine Builders, and Clinton Management, sees himself as one of those people. Levine lived in Brooklyn’s Linden Houses from four- to ten-years-old, and recently donated $100,000 to provide scholarships for NYCHA residents attending the CUNY School of Architecture. Levine, whose businesses are behind major development projects in New York City, said of NYCHA, “I'm very grateful having had the opportunity to have lived there for a period of my life, and I appreciate that my education is completely public education.”

Appealing to donors like Levine may be crucial if The Fund for Public Housing wants to reach the $200 million goal. According to Kirmani-Frye, “New Yorkers really recognize the value of other systems with the word public in front of it: public transportation, public education, but not as much public housing.” But Kirmani-Frye points out the people who live in public housing make many other public systems run. She says a “big goal of the Fund is to change the narrative and challenge the assumption that people have about public housing.”

At the New York Times City Visions conference, Kirmani-Frye echoed this sentiment, pointing out that the top three employers of NYCHA residents are the NYPD, the city Department of Education, and NYCHA itself.

The average NYCHA resident makes $23,300 annually. As of January 2015, 11% of all families received welfare assistance, and 46.9% of families had one or more members who were employed. Programs like Opportunity NYCHA help residents find employment and enroll in adult education classes about entrepreneurship. The Fund for Public Housing is part of a set of programs and strategies aimed at improving economic opportunity and outcomes for NYCHA residents.

With her typical optimism, Olatoye recalled that she was “at a conference on innovation and government, and the gentleman next to [Kirmani-Frye] leaned over and said ‘Hey I grew up in the Bland Houses in Queens, I live in Minnesota now, and want to help you.’”

“The reality is philanthropy is very self-connected, so to speak,” Levine said. But he thinks the work the Fund is doing to get the word out is vital. “My children, as a result of their awareness in my involvement in public housing are themselves involved in these efforts, so it can expand. It takes awareness.”

The Fund’s board may show the different channels the Fund can tap into; it includes figures in tech, social work, and health care, as well as residents of NYCHA. Scott Anderson is a board member and a co-Founder of Intersection, the company behind Link-NYC, the public wi-fi kiosks popping up all over the city. Anderson is interested in seeing expanded internet access to NYCHA residencies, something that has been a priority for Mayor Bill de Blasio and his administration.

In an email, Anderson said “Public access to the internet at home will help all boats rise. We will actively be looking at additional sources of funding for Wi-Fi and other digital initiatives.” NYCHA has invested $10 million to provide free internet to five of its developments, but according to Olatoye, only half of NYCHA residents have internet, paid or free, in their homes.

Diallo Powell, a board member and a co-founder of the healthcare start-up Zipari joined the fund after meeting Kirmani-Frye through a mutual acquaintance. One of the biggest questions for Powell was whether the Fund could help start “initiatives that can actually be sustainable. And return not only value but revenue.”

Right now, Powell sees his role on the board as a middleman, making connections between the board and potential donors. “I think just overall partnerships are the most important thing because at the end of the day it's not Ras and Shola doing this, it's finding groups of people, finding the right groups to make connections with who have a track record.”

That track record may start with NYCHA, which has several programs that the Fund is interested in scaling to include more residents. Olatoye thinks that the Food Business Pathways program is one of such initiatives. Olatoye explains the rationale behind the program: “Essentially, we have all these emerging entrepreneurs in our developments. They cook for the church event, or they cater the cupcakes for the local birthday parties. A couple years ago folks realized that there was a number of them, and they were actually like small businesses. So why don't we actually create a pathway to actually create real businesses for these people?”

The Food Pathways Program has, according to Olatoye, already trained 300 people to join the city’s food industry, and 50% of those people have gone on to create cash-flowing catering businesses. Still, 300 people is a small fraction of the hundreds of thousands of NYCHA residents.

Going forward, the Fund for Public Housing faces some persistent challenges, like convincing people that public housing -- and the people who live there -- are worth investing in. At this point, the donors to the Fund have endowed mostly small-scale projects: updating design guidelines or creating scholarships. By comparison, other public-private city nonprofits like the Fund for Public Schools help create much larger projects.

Olatoye thinks the Fund for Public Housing could eventually tackle large- and small-scale projects simultaneously: “I imagine a world, where we can hold both concepts in our head. Where we can have large-scale numerically impactful programs that are putting large numbers of public housing residents to meaningful work, while having the space to nurture our focus on bringing public art into the housing authority. And I think there is a base of donors and philanthropic partners who are interested in both.”

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by Elena Burger, Gotham Gazette

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Facing Reality, City Leaders Reassess 'Trump Effect'


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Mark-Viverito at Trump Tower (photo: Sofie Hecht/Gotham Gazette)


Local elected officials continue to take stock of what a Trump presidency might mean for New York City, and with budget season around the corner, only one word can describe their feelings: uncertainty.

Mayor Bill de Blasio, Comptroller Scott Stringer and City Council Speaker Melissa Mark-Viverito are all waiting to see what President-elect Donald Trump will actually do when he takes office in January. Trump, a Republican, made many campaign promises that alarmed city officials, who are almost all Democrats. De Blasio, Stringer, and Mark-Viverito all supported Hillary Clinton for President, and sounded varying volumes of alarm bells about the threat Trump may pose to the city and its residents.

In his first two weeks as president-elect, though, Trump has already backtracked on a number of his campaign promises, but he hasn’t entirely withdrawn from plans that could have major consequences for New York City. He has sworn that he will deport undocumented immigrants, force the registration of all Muslims, and cut funding to Planned Parenthood, all of which would have significant implications in New York. His pledge to overhaul the tax code could affect personal incomes of New Yorkers and any curbs on immigration could affect employment in a city with a large immigrant population. If he leads repeal of the Affordable Care Act, New York would be one of the hardest hit states, and if he decides to cut federal funding to so-called sanctuary cities, New York City would undoubtedly suffer.

Since Trump’s victory, de Blasio has repeatedly said he can’t say for sure what Trump will actually prioritize or follow through on as President. Trump’s public statements have warranted a wait-and-see approach. But, de Blasio also met with the president-elect to, as the mayor told it, express the fears many New Yorkers have of a Trump presidency, and gave a speech Monday to both explain what the city would do in the face of certain Trump campaign pledges becoming reality and asking New Yorkers to take certain action right now to help build a response movement to that which Trump created. The mayor has said he hopes Trump will remember where he came from and that he is willing to work with the new federal administration on areas of agreement, like helping working people.

Stringer's office, which oversees city finances, performed an "initial analysis" of the potential impact of a Trump presidency based on the president-elect’s campaign agenda, warning of the potential loss of federal funding.

As she did during the campaign, Mark-Viverito has taken a hard line against Trump, tweeting with the #NotMyPresident hashtag, and posting “Constant resistance MUST be our new normal. & I'm up for the fight.”

Back in July, at a breakfast event hosted by the Association for a Better New York, Mark-Viverito released the findings of a City Council study she commissioned on Trump’s policies, conducted by the Council’s finance division. The study foresaw drastic repercussions for the city. It estimated that deporting all undocumented immigrants in the country would cost between $400 and $600 billion, and New York State alone would have to contribute $49.2 billion for those costs. These deportations would mean that New York City would lose 340,000 jobs, more so than in 2001 after the World Trade Center attacks and after the 2008 recession, the report said. The consequent loss in revenue from undocumented immigrants would be $793 million in state and city taxes, according to the report.

Overall, New York’s Gross City Product would decline by 3 percent, between $23.1 and $26.3 billion, according to the City Council report.

The study also looked at immigration from 32 Muslim-majority nations -- Trump had made a campaign call to halt all immigration to the U.S. by Muslims. The Council estimated that 263,000 New Yorkers hail from these countries, of which 157,000 are working citizens and about 25,000 are self-employed. “Overall, workers in New York City who were born in Muslim-majority countries contribute $14.2 billion annually to our local economy,” the study states.

About 900 Muslims serve in the New York Police Department, something de Blasio has highlighted repeatedly since Trump’s election and the mayor said he was sure to tell Trump when the two met at Trump Tower on November 16.

Since Election Day, Mark-Viverito has struck a defiant tone towards Trump, vowing to stand up to the “hate, bigotry and racism” inspired by his campaign. “We are and will continue to be a city that respects and protects immigrants, people of diverse faiths and races, LGBTQ New Yorkers, a city that values and empowers women and all of our communities,” Mark-Viverito said November 9, the day after the election. “We are better, stronger and prosperous because of our commitment to inclusion.”

As she and others wrestle with what a Trump presidency will mean more tangibly for New York, the speaker hasn’t made any mention of the Council study from July, though. It isn’t available on the City Council’s website and wasn’t sent out in a press release the day it was unveiled. Eric Koch, a spokesperson for the speaker, said in an email last week that the “report still stands.”

When asked why Mark-Viverito hasn’t talked about the study, Koch said, “I don’t think you need to mention a study every time you talk about something.” He said the analysis had been provided to members of the press at the ABNY event and anyone who had requested it. The speaker invited criticism for producing the study with city resources since she was an active surrogate for Clinton during the campaign. She did not order a similar examination of Clinton’s policies, explaining at the time that Trump’s drastic proposals warranted looking at how they would affect the city.

During his speech at The Cooper Union on Monday, de Blasio vowed to stand strong against Trump’s policies if they should run contrary to the city’s values and interests. “We New Yorkers will stand together,” de Blasio said. “We’re going to stand up for the needs for working people. We’re going to stand up for the right to organize. We’re going to stand up for our immigrant brothers and sisters. And we know that so many in this city fear being affronted, and we will stand with each and every one.”

De Blasio’s administration is also preparing for what could be drastic cuts to the city’s budget. In the current fiscal year, roughly $8.5 billion was budgeted under federal contributions, according to the November budget modification which adjusted the total city budget upwards to $83.5 billion from the $82.1 billion that was arrived at in the adopted budget. The modification also included projections for the next few fiscal years, and estimates a lower federal contribution of $6.8 billion for fiscal 2018 and $6.6 billion for the two years after that.

Asked for more specifics at a Tuesday press conference about how he would fight federal policy and plug potential budget reductions, de Blasio said, “we’re going to seek to resolve these issues when we can, but if the federal government asks the City of New York to do something we think is against our vital interests, we’re prepared to stand up. I’m not going to speculate about the funding issues because it’s way too early to tell.”

“There’s no way to know yet how the City’s budget may be affected by potential policies under the Trump administration because we don’t yet know what they will do,” said mayoral spokesperson Freddi Goldstein, in an email. “We’re preparing cautiously and we’ll respond aggressively, but at this point it’s all theoretical.”

Trump’s propositions stand to have a domino effect that may be hard to fully grasp. New York State has already suffered from an imbalance of payments to the federal government for decades, which late Senator Daniel Patrick Moynihan first highlighted in a report termed “The Fisc” in 1976. The state received less in federal aid than it pays in federal taxes, roughly 91 cents to the dollar, according to a 2015 analysis by State Comptroller Tom DiNapoli.

“In the best case scenario,” said Jonathan Bowles, executive director of Center for an Urban Future, a liberal think tank, “New York keeps doing what it’s doing without help from Washington D.C.” Although he gave Trump the benefit of the doubt, he said the state will definitely miss out on opportunities that would have been likely under a Clinton administration, such as funding for social services, transit infrastructure, and immigration reform. While Trump has promised a major infrastructure spending package, it is unclear what form that could take or whether he and Congress, albeit Republican-controlled, will agree on its scope and funding.

“In the worst case scenario,” Bowles said, “a Trump administration could take New York backwards on health care, immigration, trade, and criminal justice.”

He cited the importance of immigrants to the city and how a ban on certain types of immigration could be disastrous. “It goes far beyond lost tax revenue,” he said. “Immigrants have been a real catalyst for growth.” And under Trump’s proposals, he foresees a decline in legal immigration as well. “New York is a huge loser if that happens,” he said.

Trump has also promised to upend current trade agreements which, Bowles argues, have been massively beneficial to a global hub like New York City. “Every industry just about has seen growth because of globalization,” he said, citing fashion, law, technology, among others. “So much of the city’s economy is built on exporting and trading products.”

Bowles also warns that the figures in the speaker’s report “only scratch the surface” of the effects on New York City that a Trump administration and like-minded Congress could have. Major changes in healthcare policies would lead to greater burdens on the city and state’s budget, he said, as it absorbs the cost of lost federal aid. On the precarious state of criminal justice policy, he pointed out, the president-elect’s tone and rhetoric could create further divisions.

But the one aspect Bowles fears most is the omnipresent threat of terrorism. “As a New Yorker, I’m really afraid that President-elect Trump...could make statements or policy decisions that increase the likelihood of terrorist attacks,” he said, expressing concern that the rhetoric Trump employed on the campaign trail could speed up domestic radicalization if carried forward into the presidency. “Hopefully,” he said, “the president-elect will put good people in place and they won’t go there.”

By some estimates, New Yorkers might feel the effect of a Trump administration directly on their own pockets. According to the city’s Independent Budget Office, under Trump’s tax plan, if state and local taxes are no longer deductible against federal taxes, it would increase the taxable income in the city by $28 billion alone, hiking the tax bill by $8 billion for New Yorkers. Trump has also promised significant tax cuts, of course. Yet again, these proposals are not set in stone, or even paper for that matter. “Many of [Trump’s] policies are pretty short on details, stronger on rhetoric than fine points,” said Doug Turetsky, IBO communications director. “It’s going to take some time for this to play out.”

The unpredictability also means that the city will have to “tread carefully,” Turetsky said, in its assumptions about revenues from federal sources.

As Trump continues to build out his administration and clarify his positions on policy, elected officials may have a clearer picture of the future. After attending the mayor’s speech on Monday, Comptroller Scott Stringer told reporters that his office would release its own analysis. “I think we’ll be able to give you some pretty good data snapshots,” he said, “about what’s at stake both in terms of what’s going to happen in Washington, how that will trickle down to the state and then how that comes back to New York City.” He conceded, though, that he could draw no conclusions yet since “a lot of this is still uncharted waters.”

Stringer acknowledged that limited federal funding is nothing new for New York. “Look, it’s not like we’ve been up to our eyeballs in NYCHA funding and the like,” he said. “We’ve already sent billions more to the federal government than we get back and that’s under a Democratic president and Democratic elected officials as well, so New York has always been on the short end of the stick. We are now worried that any more of that could have real impact in terms of continuing poverty and other issues.”

Stringer's office then released its analysis on Wednesday.

Nicole Gelinas, senior fellow at the Manhattan Institute, a conservative think tank, echoed a similar sentiment of uncertainty. “More infrastructure spending could benefit New York, for example, but Trump's $1 trillion infrastructure plan may be less than meets the eye,” she said in an email, “as he seems to be focusing on private-sector infrastructure, like pipelines, not public-sector infrastructure, and it is already straightforward for New York to fund profitable, private-sector infrastructure projects; it's the public-sector projects like the subway that are a funding and building problem for us.”

Gelinas also said that a decrease in Medicaid spending would be detrimental, but pointed out that Trump has yet to put forward a concrete plan to replace the Affordable Care Act’s provisions for higher spending.

“So far, Trump's main impact has been to create a traffic problem on Fifth Avenue, one that is the mayor's responsibility, and one that the mayor hasn't handled well at all,” she added. “Other than that, we'll have to wait and see.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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Note: this story has been updated to reflect that Comptroller Stringer released his office's initial analysis of federal funding to New York City.



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