2025’s assault on nonprofits
We’re seeing (in my view) an unprecedented (at least in my lifetime) assault on civil society by the federal government. Through a wide range of actions–many of which appear to be lawless–the federal government has threatened, investigated, and cut off funding to any number of nonprofits for simply following their lawful mission. Civil society is *appropriately* not ready to go down without a fight — more than 100 lawsuits have been filed (usually by nonprofits) challenging the legality of various actions taken over the past 2 months by the federal government in ways that harm the nonprofits or their members.
For example, just today, two nonprofits filed a lawsuit challenging the release of confidential, private information filed by taxpayers who are suspected of having undocumented status. IRS has long kept this information confidential, recognizing the obvious benefits to the federal government if immigrants without lawful status pay taxes. Indeed, in any given year perhaps $100 Billion of revenue comes into the treasury from undocumented workers, even though these workers are categorically ineligible for virtually all federal benefits.
Other lawsuits have challenged the abrupt and apparently lawless rescission of funding to government grantees who have often already performed services pursuant to contracts with the government.
In response to civil society expressing its opposition, the federal government has doubled down on oppressive tactics. To start, the current administration, smarting from a lot of highly publicized losses, has stated that it will ask courts to impose bonds when a preliminary injunction is issued under Fed. R. Civ. P. 65(c) as a way to “deter[]” litigation brought by “activist” groups. This is, of course, silliness on top of silliness. Determining the amount of a bond would only be needed when a preliminary injunction is actually entered, which requires a federal court to find, among other things, that plaintiffs are likely to prevail in the action and would face irreparable harm without the injunction. These are, by definition, not frivolous cases. And there is a very long and well-established practice of federal courts, across the circuits, from declining to enter bonds — or setting only a nominal bond amount — when dealing with structural injunctions brought by public interest organizations in pursuit of constitutional or civil rights.
But oppressive tactics have lead to other heavy-handed measures. The federal government has, at best arbitrarily, and at worst maliciously/discriminatorily, threatened, promised to investigate, or cut off funding to countless nonprofits across the country.
Nonprofit, particularly religiously affiliated, universities have been among the targets, with countless programs and other funding rescinded. And some of the attacks have been decidedly specific. Today, for example, the federal government announced that it was rescinding $400 million in federal funding, without any semblance of process, to Columbia University. Ostensibly, but only laughably, the reason was that Columbia failed to act “in the face of persistent harassment of Jewish students.” Earlier this week, the place where I work, Georgetown University Law Center, received a letter from the Interim United States Attorney for the District of Columbia, stating that DOJ would no longer hire law students based on curriculum at the Catholic and Jesuit law school that the Interim US Attorney thought was “unacceptable.” The Dean responded: “Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as Interim United States Attorney for the District of Columbia, approve of our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.”
Whatever excesses and flaws the nonprofit sector may have, the nonprofit sector has the power and the right to resist intrusions on nonprofits’ pursuit of their missions. And I for one am glad to see them take up the fight.
-Joseph Mead