The Administration’s Shutdown of SNAP is Obviously Illegal-Updated

David Super

     On Friday, October 24, 2025, the Trump Administration suddenly released a memo claiming that it lacks the authority to spend contingency funds appropriated by Congress to provide November benefits in the Supplemental Nutrition Assistance Program (SNAP).  This position, which contradicts a position this Administration adopted on September 30 and has had on USDA’s website until recently, is utterly without foundation in law.  This is another example of the Administration trying to wrest the power of the purse away from Congress by refusing to undertake congressionally mandated spending even as it spends other moneys on its preferred activities without congressional authorization. 

     For the past several years, Congress has included a $3 billion contingency fund in each year’s SNAP appropriation.  Unlike the regular SNAP appropriation, which is limited to a single fiscal year, these contingency funds have been made available for one or two additional years.  For example, the SNAP appropriation for federal fiscal year 2024 states: 

For necessary expenses to carry out the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.), $122,382,521,000, of which $3,000,000,000, to remain available through September 30, 2026, shall be placed in reserve for use only in such amounts and at such times as may become necessary to carry out program operations… .

At the beginning of October, a total of $6 billion is available in contingency funds for SNAP:  $3 billion from the fiscal year 2024 SNAP appropriation that will not expire until a year from now and another $3 billion from the fiscal year 2025 SNAP appropriation that will not expire until September 2027.  With no annual SNAP appropriation for fiscal year 2026, and with the regular fiscal year 2025 appropriation not available beyond October’s SNAP benefits, release of this $6 billion obviously has “become necessary to carry out program operations”. 

     The Administration recognized this in its September 30, 2025, “Lapse of Funding Plan”, which USDA only removed from its website in the past few days.  The plan noted that October benefits were obligated in fiscal year 2025 and chargeable to that appropriation but that “multi-year contingency funds are also available to fund participant benefits in the event that a lapse occurs in the middle of the fiscal year.”  During the 2018-19 appropriations lapse, the first Trump Administration similarly understood the contingency funds to be for precisely this purpose, declaring itself “committed to minimizing the impact of the appropriations lapse on SNAP households and directing the limited funding available from the contingency that can be used toward normal SNAP operations, including the issuance of benefits for new applicants in February.”  Other administrations have made similar statements when appropriations lapses occurred or were threatened. 

     The Administration now asserts “SNAP contingency funds are only available to supplement regular monthly benefits when amounts have been appropriated for, but are insufficient to cover, benefits. The contingency fund is not available to support FY 2026 regular benefits, because the appropriation for regular benefits no longer exists.”  It cites no legal authority for that position, and nothing in that appropriation or general appropriations law requires that the contingency funds be used only to supplement a regular appropriation.  (This contrasts with the two laws the Administration relied upon to move research into servicemembers’ pay, which does require a current, unexpired appropriation to receive transferred funds.)  All the appropriations act requires is that spending the contingency funds has “become necessary to carry out program operations”, which is obviously the case when benefits for forty million people are at risk.    

     Not only is the Administration contradicting its own “Lapse in Funding Plan” and the first Trump Administration, but its position is internally inconsistent.  It asserts “the contingency fund is a source of funds for contingencies, such as the Disaster SNAP program, which provides food purchasing benefits for individuals in disaster areas”.  But Disaster SNAP is authorized under section 5(h) of the Food and Nutrition Act, just a few subsections down from section 5(a), which authorizes regular SNAP benefits.  The SNAP appropriation, which includes the contingency fund, references the entirety of the Food and Nutrition Act as a whole, making clear that all of the funding provided — including contingency funds and annual appropriations — can be used for all of the benefits provided by the statute, including regular benefits and disaster benefits.

     Even if SNAP contingency funds were somehow unavailable to support SNAP benefits in November, USDA has broad transfer authority among nutrition programs.  It has already tapped this authority to move $300 million from child nutrition programs to keep the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) running during the current lapse in appropriations.  In early October, child nutrition programs had $23 billion available.  Those programs spent less than $3 billion per month last year.  Thus, the child nutrition account has more than enough to fund the roughly $8 billion required to pay for November SNAP issuances, another $300 million transfer to WIC, two months of SNAP administrative costs (slightly over $400 million per month) and child nutrition program’s operation without any risk of running out any time soon.  Nonetheless, the Administration’s memo declares that “[t]ransfers from other sources would pull away funding for school meals and infant formula.” 

     Most simply, the Food and Nutrition Act states “Assistance under this program shall be furnished to all eligible households who make application for such participation.”  The Administration has not identified any justification for its disregard of this requirement.  A more clearly unlawful impoundment is difficult to imagine. 

     Terminating SNAP is a choice, and an overtly unlawful one at that.  The Administration has chosen to hold food for more than forty million vulnerable people hostage to try to force Democrats to capitulate without negotiations. 

     UPDATE:  On October 25, the following statement appeared on USDA’s website for the Food and Nutrition Service:  “Senate Democrats have now voted 12 times to not fund the food stamp program, also known as the Supplemental Nutrition Assistance Program (SNAP). Bottom line, the well has run dry. At this time, there will be no benefits issued November 01. We are approaching an inflection point for Senate Democrats. They can continue to hold out for healthcare for illegal aliens and gender mutilation procedures or reopen the government so mothers, babies, and the most vulnerable among us can receive critical nutrition assistance.”  If anyone doubted whether it was political calculation rather than advice from counsel that led to the Administration’s sudden, textually unmoored reversal of its legal position, this should resolve those questions. 

     @DavidASuper1 @DavidASuper.bsky.social

An Elegy for the Actual Founding Generation

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025). 

Aziz Rana

            John Witt’s superb The Radical Fund tells the interwar story of the Garland Fund, a relatively small institution endowed by an idealist young socialist named Charles Garland, which nonetheless played a dramatically outsized role in bringing together key reformers, organizers, lawyers, and politicians across the era’s broad American left. The Fund itself has an almost Zelig-like quality, intersecting at some point with seemingly every major activist in the 1920s and 1930s on behalf of racial equality, labor rights, and civil liberties. In narrating the history of the Fund, Witt ultimately narrates nothing less that the birth of the United States itself—certainly the birth of the version of the country many Americans today embrace as their own. The book is thus a profound and incredibly moving testament to the collective efforts and achievements of the individuals who, in many ways, are the actual founding generation of the modern United States. 

            In popular culture, there persists a tendency to think of the country as having a single, unbroken constitutional project, from the eighteenth century to the present. In this account, later achievements are part of an unfolding liberal essence, whose germ was already present in the 1780s. Yet, in truth, the constitutional compact Americans, who came of age by the end of the twentieth century, have lived under bears little relation to the commitments and cultural world of Hamilton and Madison. The twentieth century compact linked together a series of ideological commitments that fundamentally broke with the eighteenth and nineteenth century defenses of explicit white supremacy and labor oppression. This new compact entailed a reading of the Constitution as grounded in racial inclusion and the legal overcoming of Jim Crow; an anti-totalitarian commitment to civil liberty and speech rights; a defense of market capitalism, but one hedged in by an entrenched regulatory and social welfare state; an embrace of institutional checks and balances, with the Supreme Court as a reformist participant; and a vision of US power as promoting these same internal values globally.

            In returning us to the world of the 1920s, The Radical Fund reminds the reader of what an unfamiliar country the United States was not so long ago. His cast of reformers exist in a society of brutal white violence and the ever-present specter of lynching, alongside extreme economic immiseration and private armies sent by business to wage actual, not metaphorical, war on labor.  These reformers are thus participants in a broad legal, economic, political, and cultural turn, and embody the generational hinge between a nineteenth century order and the one many American now would recognize. 

The post-Cold War years of the 1990s and 2000s saw an endless stream of hagiographies to the eighteenth-century revolutionary elites, with Lincoln added into the mix. In recounting the history of the Garland Fund and in honoring the life’s work of those involved, I see Witt’s book as a vital and beautifully written contribution to a new cultural repository. This repository speaks far more authentically to American achievement. Indeed, books such as this one—especially so grippingly told—are worthy in own right of memorialization through popular art, musicals and film, like the 1990s and 2000s hagiographies.

The Power to Decide

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025). 

Laura Weinrib

Nathan Margold’s oft-debated framework for the NAACP’s desegregation litigation campaign, John Witt convincingly argues in The Radical Fund, “was not a guide, naive or otherwise, to the establishment of new rights,” but “a strategy for navigating power in the institutions where authority resides” (423). That bold reinterpretation is one of many insights in Witt’s magisterial new book—and in my view, the most emblematic of the project as a whole. The Radical Fund is at its most illuminating when it follows its actors to the place where twentieth-century civil-rights, civil-liberties, and labor strategies quietly converged: not in the declaration of abstract rights, but in the allocation of authority. Over the course of the 1920s, the administrators and beneficiaries of the Garland Fund came to understand that substantive victories were downstream of “governing who decides” (426)—a view they helped write into labor law via the Reading Formula and, ultimately, the Wagner Act’s embrace of majority rule and exclusive representation.

Wherefore Art Thou Philanthropy

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Larry Kramer

          Let me start by saying that I absolutely loved reading this book. It’s a beautifully written, deeply engrossing account of a marvellous range of events across the first third of the twentieth century, though telling these stories often requires John to reach back to the last third of the nineteenth century and, in a few instances, takes him forward into later decades of the twentieth. This is historical research at its very best, displaying an encyclopaedic grasp of details, without ever losing either the narrative thread or the larger picture. I found it entirely captivating. 

          Along the way, readers are treated to oodles of fascinating details and novel insights about well-known incidents—from the Scopes Monkey Trial and the trials of Sacco and Vanzetti to the Scottsboro case—while also being introduced to less familiar episodes, some totally new to me, like April Farm, the Brookwood Labor College, and many more. In like fashion, we gain new perspectives and insights about well-known personalities like Roger Baldwin, Clarence Darrow, and W.E.B. Dubois; as well as familiar but not quite as well-known people like Elizabeth Gurley Flynn, James Weldon Johnson, and Walter Lippman; and more than a few completely new characters (again, to me at least) like Charles Garland himself, A.J. Muste, and Clinton Golden. 

          John manages, in just a few pages for each, to paint detailed pictures of events and the people who made them, bringing the period to life and giving the reader a feeling of familiarity and authenticity. The cumulative effect is a narrative tour de force that should become a must-read for anyone looking to understand this turbulent period of American political history. It also serves as a timely reminder today—when even the most modest efforts to provide a social safety net are with a straight face condemned by folks on the right as “Marxist” and “socialistic”—that there was a time in the not so distant past when American politics really did have a far left. 

          But here is the thing: the book isn’t really about the Garland Fund, which serves in John’s account more like a narrative hook on which to hang the many stories that comprise the book’s substance. The Fund runs through the text as a kind of Zelig-like figure (the eponymous lead character in Woody Allen’s 1983 film). Like the character in the movie, the Fund is there, in the background, of nearly every important development on the political left in the 1920s and 30s. But we learn relatively little about it: about the role it played and how it played that role. 

Altman on Discrimination and Noncomplicity

Andrew Koppelman

The PEA (Philosophy, Politics, Academia) Soup blog, which hosts philosophy discussions, invited me to participate in a symposium on Scott Altman’s article, Discrimination, Noncomplicity, and Reasons That Mask Disdain (Ethics 136 (1):6-33 (2025).  Here’s my contribution:

Scott Altman argues that exemptions from antidiscrimination laws should be denied when they are sought by those who seek to avoid complicity in another’s immorality.  This would categorically bar the now-familiar claims of wedding vendors, such as bakers or photographers, who object to facilitating same-sex weddings.  He thus disagrees with writers such as myself who have argued (see my Gay Rights vs. Religious Liberty? The Unnecessary Conflict, Oxford University Press, 2020) that such claims ought to be legislatively accommodated if that can be accomplished without personally turning away those who seek services for such weddings.

Granting such exemptions, he argues, implicitly accepts and endorses the view that the customer’s immorality makes them unfit for commercial interaction.  Laws should rest on bases that everyone can accept, and that is not a justification that all citizens could accept.  “Reasons that demand humiliation and self-denigration do not treat others respectfully.” (16)  The vendor’s request for exemption “relies on neutral language that masks contempt, requiring the customer to participate in self-denigration by embracing the vendor’s disdain as reasonable.” (16)

Altman is right that the claims of these wedding vendors are predicated on an objectionable kind of disdain for one’s fellow citizens.  But in a diverse society such disdain is common.  Normally citizens cope with that by declining to associate with one another.  Antidiscrimination law is an exception to that right of nonassociation.  The law also sometimes has exceptions to that exception, as part of the general structure of liberal accommodation for diversity.  The exceptions can be invoked even when their motives are invidious.

Emergency Powers and the Youngstown Concurrence

Gerard N. Magliocca

My book on The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case was published today. I'll be doing some posts in the coming weeks that connect some of the book's themes to ongoing constitutional disputes.

In his concurrence, Justice Jackson emphasized that the Framers did not provide for emergency powers, save for Congress's authority to suspend habeas corpus. "They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies."

Emergency power instead came from Acts of Congress that evolved as part of "the practical working of our Government." He summarized the emergency statutes as of 1939, when Attorney General Murphy described them, and said: "Under this procedure, we retain Government by law-special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers than can be asserted, and persons affected may be informed from the statute of their rights and duties."

Here the concurrence was telling us how to interpret emergency statutes. First, they cannot be understood by reference to original public meaning. They can only be construed by reference to practice. Second, they must be temporary or have some clear endpoint. Third, they must provide adequate notice to the public.

The imposition of tariffs under the IEEPA flunks these tests. No President until now understood that law to authorize tariffs. In other words, there is no supportive practice. There is no endpoint to an emergency that is based on trade deficits. We will always have trade deficits with some nations. And there is nothing in the statute or in this year's Executive Orders that provides notice. Tariffs go up, go down, get postponed, and so on with no warning and no reasons. Legal Realists used to say that the law was what the judge had for breakfast. Now the law is what the President had for breakfast. 

As a result, the lead brief from respondents in the tariff case was right to open and close with references to Justice Jackson's opinion. The Court should do the same.

What Money Can Do: John Witt’s The Radical Fund

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Mary L. Dudziak 

In this chaotic and destructive era of American history, John Fabian Witt’s The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America is something of a salve. Written more in the form of a novel than a traditional history book, the narrative follows the lives of brilliant idealists who sought to realize their expansive visions of social change. Their accomplishments expanded civil rights and free speech and changed American history.  Witt’s great command of the history of U.S. reform efforts coupled with his envious narrative power make the book a compelling read. 

The spark for these reformers’ efforts was money: the unwanted inheritance of Charles Garland, who did not believe in inherited wealth. The visionaries who made decisions about what the Garland Fund would support, and the ones who put the money to use were an important cast of characters in the history of social change in the twentieth century United States. In Witt’s hands, the Fund’s history is a narrative device that weaves their stories together.

Could the Garland Fund Upend America Today?

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

David Pozen 

John Witt’s The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America recovers the remarkable story of the American Fund for Public Service, known as the Garland Fund, and its efforts to advance social democracy during the 1920s and 1930s. With his characteristic mix of erudition and elegant prose, Witt brings to life the personal dramas, institutional dynamics, and ideological struggles that shaped the Fund’s interventions in many of the most pressing issues of the era. A riveting read, The Radical Fund seems likely to become that rarest of academic birds: a 700-page monograph that finds a large and grateful audience. 

Given my limited historical chops, I will leave it to others to evaluate The Radical Fund’s contributions to the history of philanthropy, labor relations, civil rights, and the interwar period. My first encounter with Witt’s project was at a conference on nonprofit law, and it is through this lens that I will offer some reflections. As exemplified by books such as Winners Take All and The Tyranny of Generosity, recent years have seen a boomlet in commentary that depicts wealthy nonprofits in general, and private foundations in particular, as enemies of democracy and engines of plutocracy. Against this backdrop, perhaps the most striking thing about The Radical Fund is its celebratory tone. The Garland Fund, Witt tells us, managed “to remake an unjustifiably unfair society” (p. 4) through its righteous pursuit of economic and racial justice. The implication, made explicit in the book’s Epilogue and in Witt’s recent New York Times essay on “How to Save the American Experiment,” is that a Garland Fund of today might do the same. All that’s needed is a similar level of creativity and courage. 

I am not so sure. Contemporary foundations might take inspiration from the Garland Fund in a generic sense, striving to emulate the Fund’s intrepid spirit while otherwise forging their own path. But nonprofit law has evolved since the 1930s in ways that would make it hard to replicate the Garland Fund’s most innovative tactics and important breakthroughs. Consider some examples.

Rejecting the Compact is a Fiduciary Responsibility—and an Opportunity

Joseph Fishkin

I have an opinion piece just out in Inside Higher Ed arguing for why no higher education leader or trustee can truthfully say that it's consistent with their fiduciary responsibilities to sign their university up for the Trump administration's "compact."  Now that this thing is open to any university in the country, you have an opportunity to organize any university with which you are affiliated in any way—faculty, student, staff, parent, alum, donor, trustee—and work to convince your school to reject the compact.  The central reason, I argue, is the combination of highly vague & ambiguous demands with draconian penalties, to be unilaterally imposed (by a DOJ that has a record of acting in bad faith and that also follows orders from a notoriously mercurial president).  No one, regardless of their politics, should sign up for this.

Now back to your regularly scheduled (and genuinely excellent, I must say) symposium on John Witt's book...

Law, Organizing (and Philanthropy) in the Radical Fund

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Benjamin Sachs

For anyone interested in the contemporary labor movement, and in efforts at revitalizing it, John Witt’s The Radical Fund is important reading. Indeed, the book is uncanny in its relevance for contemporary labor movement trends, challenges, and opportunities. One obvious way this is true goes to the core of the book’s project: the contest in the early 20^th century over the role of philanthropy in supporting the labor movement, related with masterful storytelling, sheds light on those same questions in contemporary practice. Indeed, there are concrete lessons to be learned here. To take one example, the importance of Brookwood Labor College (nearly forgotten today) to the sweep of labor activism across these years – from the role it played in realizing Sidney Hillman’s new unionism to the contribution it made to the success of the sit-down strikes of the 1930s – suggests that philanthropic support for a re-imagined system of labor education should be higher on philanthropy’s agenda today. 

But it is another aspect of The Radical Fund that I want to highlight: namely, the history the book tells about the relationship between law and worker organizing. This question of how law and organizing relate has been the focus for a set of legal scholars over the last few decades and is now the subject of an extensive body of scholarship. In addition to other essential historical work on the subject, early works in the “law and organizing” literature proper include Scott Cummings and Ingrid Eagly’s A Critical Reflection on Law and Organizing and Jennifer Gordon’s book We Make the Road by Walking. More recent work includes Greg Balz’ writing (e.g., Resurrecting the Rent Strike Law), Cummings and Elmore’s Mobilizable Labor Law and a pair of articles by Kate Andrias and me (Constructing Countervailing Power and The Chicken-and-Egg of Law and Organizing) along with critiques of that work like Catherine Fisk’s The Once and Future Countervailing Power of Labor. The animating question in all this scholarship is how law can best be understood and deployed by organizers to build power with and for workers.

Lessons for Nonprofits in The Radical Fund: The Perils of Self Dealing and the Promise of Incubating Novel Ideas

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

David M. Schizer

In The Radical Fund,[1] John Witt recreates the world of radical politics during the 1920s and 1930s. His elegantly crafted narrative is jam-packed with vivid sketches of colorful personalities, as well as the social movements and events they influenced. At the center of the plot is the American Fund for Public Service, which was launched with a $1 million donation from Charles Garland, an idealistic and somewhat eccentric heir to a Wall Street fortune.[2] The directors of this “Radical Fund” were a “who’s who” list of prominent progressives, and it supported a range of causes, including civil liberties, civil rights, and organized labor. By chronicling the history of this charitable foundation (“the Fund”), Witt manages to offer an account that is both panoramic and focused. This is not a history of the 1920s and 1930s, but of a particular nonprofit. Yet through this lens, Witt captures the left-wing zeitgeist of an important era. 

          Since Witt writes about a nonprofit, I offer reflections on the way it was managed and regulated. On two dimensions, I come to a somewhat different assessment than Witt. First, the Fund was riddled with conflicts of interests and self dealing, a reality that may not trouble Witt as much as it troubles me. 

Second, the Fund exemplified a feature of our system that I celebrate, but Witt views with more ambivalence: nonprofits can claim subsidies without having to persuade government officials of the merits of their cause. This feature has helped incubate some of the most impactful social movements of our time. This transformative power of nonprofits is on full display in The Radical Fund, as Witt himself emphasizes, but his balanced narrative also offers critiques, which I find less persuasive.

Warlord for a Day

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Jamal Greene

          In Brewster’s Millions, a thoroughly forgettable 1980s comedy based on a 1902 novel by George Barr McCutcheon, a man comes suddenly and surprisingly into world-altering wealth via an inheritance and must quickly decide how to spend it. The conceit of the film is that if Brewster spends the money in full, he gets ten times as much, and if he doesn’t, he gets nothing. Hilarity ensues. Or at least, it was meant to. The biggest problem with Brewster’s Millions is that, despite having Richard Pryor and John Candy as its comedic leads, it isn’t very funny.

          Spending vast sums of money turns out to be rather serious business, as John Fabian Witt’s splendid book, The Radical Fund, makes pellucid. Witt’s subject is Charles Garland, who receives a roughly $1 million inheritance—the same amount as McCutcheon’s Brewster—that he initially refuses in indignant protest of unearned wealth in a world of vast inequity. He is eventually persuaded, by Upton Sinclair no less, that he should accept the money but give it away. His charitable efforts turn into the American Fund for Public Service, which spends down the money and its investment earnings in the roughly two-decade period between the World Wars.

          The trick for the Fund was to spend the money not just fully, but wisely. Garland was a lefty—the old kind—as was ACLU co-founder Roger Baldwin, whom Garland tapped to direct the fund. In telling the story of the applicants vying for American Fund largesse, rivalries within the Fund’s board of directors, and competing philanthropic philosophies, Witt takes readers on a lush journey through the strategic challenges around confronting labor exploitation and racial discrimination, two of the most trenchant social problems of twentieth-century United States, with a million dollars and a dream.

          Though Witt doesn’t quite put it this way, The Radical Fund at times reads as a book about how to pursue social change within a failing state—or, more optimistically, one that has not yet been fully realized. The challenge of building out industrial democracy in the first half of the twentieth century was that workers had lost control of their lives and livelihoods through factory work and, eventually, failing farm prices, and had no effective political recourse. The government was structured to protect narrowly conceived property and contractual rights, and courts understood those rights to be constitutionally entrenched (by a constitution written in an era in which non-property owners were largely excluded from electoral politics).    The even more daunting challenge of combatting Jim Crow was that white supremacist planters controlled the Democratic Party and traded political favors for non-interference with a system of race-based feudalism and caste-like social privilege.

The Garland Fund and the Perils of Extremist Illiberalism

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

David E. Bernstein

John Fabian Witt’s The Radical Fund masterfully reconstructs the history of the American Fund for Public Service, better known as the Garland Fund. The Fund embodied both the promise and the peril of radical philanthropy in the United States between World War I and World War II. Conceived by Roger Baldwin and financed by Charles Garland’s relatively modest inheritance, the fund set out to support “pioneering enterprises” capable of advancing democracy and social justice (105–109). Yet the very inclusiveness that defined its mission proved to be its undoing. Its openness blurred essential distinctions between liberal reform and revolutionary activism, particularly the illiberal strains of the latter promoted by American Communists who followed secret directives from the USSR.

The Radical Fund – An Historian’s Brief For Social Democracy

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Willy Forbath

John Witt’s The Radical Fund is a feast.   Brimming with narrative energy, the book is a brilliantly detailed chronicle of the life and times of the Garland Fund’s directors and counselors along with the individuals and organizations whose work it sustained.  Dozens of famous and forgotten figures of the broad left of the early 20^th century – activists and organizers, journalists, attorneys, economists and other policy mavens; liberals and progressives, socialists and social democrats, syndicalists, anarchists and communists – inhabit the book’s 600-plus pages, as directors and beneficiaries of the Fund alongside the organizations many of them founded and led, including three that turned out to be pillars of modern American liberalism in the decades ahead: the ACLU, the CIO (and the industrial unions it came to house), and the NAACP. 

Witt is equally masterful crafting shrewd and revealing biographical sketches, recounting dramatic strikes and protests, and conveying the stakes of intricate organizational conflicts and the genealogy of complex ideas – all in pithy and often sparkling prose.  

Still, one could fill a small library with books about these people and organizations.  What is to be gained from a new one that attends to the outfit that funded them?  A great deal is the answer.   

New Draft Essay on Birthright Citizenship

Gerard N. Magliocca

This will be part of an issue of the Harvard Journal of Law and Public Policy starring articles by Ilan Wurman and Keith Whittington. My essay is the (much shorter) third wheel, but here's the Abstract:

Putting labor, civil rights, and civil liberties at the center of the American story

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Risa Goluboff

I first encountered the Garland Fund more than 20 years ago, when Mark Tushnet described the key role the Fund’s “Margold Report” played in developing the NAACP’s litigation strategy in the 1930s. Drawing on Tushnet’s work in my own book on pre-Brown attacks on racial and economic inequality, I used the Margold Report largely as evidence of the NAACP’s relative disinterest in Black labor and the issues Black workers faced under Jim Crow. My approach to the Garland Fund was thus fleeting and piecemeal. To the extent that I noticed the many famous figures involved in the Fund, or that I was surprised that the Fund had approved the NAACP’s proposal despite the apparent divergence between the Fund’s focus on labor and the NAACP’s lack thereof, I did not pursue such leads. Like Tushnet before me, I came at the Garland Fund from one particular angle: as a small but important part of the NAACP’s developing legal strategy.

How lucky for me, and for us all, that John Witt has now put the Garland Fund squarely at the center not only of his own story but, in many ways, of the entire history of the United States in the first half of the twentieth century. What makes the breadth and ambition of Witt’s book possible is the breadth and ambition that he has uncovered in the Fund itself: It was capacious enough to welcome the likes of Roger Baldwin and James Weldon Johnson and Elizabeth Gurley Flynn and many more. It simultaneously promoted “labor fairness and racial equality and basic human freedoms” like free speech (541). The Fund drew on federal Indian law and decades-old anti-Chinese American discrimination cases to produce the NAACP’s litigation blueprint, and it funded lawyers in causes as disparate as Ossian Sweet and Scottsboro. Its work ranged from the United Mine Workers to the Brotherhood of Sleeping Car Porters to the Amalgamated Clothing Workers of America and ultimately to the origins of the CIO. It defended everyone from Scopes to Sacco and Vanzetti.  Witt shows how the Fund laid the groundwork for so much of mid-century America’s activism, litigation, political culture, and reform. In Witt’s telling, the Fund’s impact was a feat of great proportions for such a small band of activists and intellectuals. And his telling of their story is its own feat of prodigious historical research, narrative elegance, and no small contemporary impact.

Three Views of the Carnival

David Pozen

Jedediah Britton-Purdy and I have just published an essay in the Boston Review that might be of interest to some readers of this blog. The essay tries to identify and make sense of the three main competing accounts of the second Trump administration and the current political moment, which we describe as “authoritarian crisis,” “more of the same,” and “constitutional regime change.” Along the way, we touch on some familiar Balkinization themes, including constitutional crisis, constitutional rot, and constitutional moments. There is no paywall.

The Radical Fund Behind Brown

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Michelle Adams

John Fabian Witt’s terrific new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, explores critical and urgent moral terrain—the “distinctly modern struggle for democratic power.” Witt tells a powerful and underappreciated story of the extraordinary experiment of the American Fund for Public Service—the so-called Garland Fund—and its wager that radical philanthropy might become a lever for social transformation.

The story opens with Charles Garland’s decision in 1920 to give away the inheritance he deemed morally tainted. Roger Baldwin, soon to be the founder of the ACLU, convinced Garland that his money could seed “a gamble in human nature,” an experiment in the uses of wealth for democracy. Baldwin envisioned the Fund not as a conventional foundation but as an engine for “fundamental transformations”—a tool to challenge “the present means of producing and distributing wealth.” Baldwin thought the central question of the time was “how to build democracy for an immense, racial divided country in the age of inequality, mass production, and mass communications.” Sound familiar?

Balkinization Symposium on John Witt, The Radical Fund

JB

This week at Balkinization we are hosting a symposium on John Witt's new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

We have assembled a terrific group of commentators, including Michelle Adams (Michigan), David Bernstein (George Mason), Mary Dudziak (Emory), William Forbath (Texas), Brian Galle (Berkeley), Risa Goluboff (Virginia), Jamal Greene (Columbia), Larry Kramer (LSE), David Pozen (Columbia), Aziz Rana (B.C.), Ben Sachs (Harvard), David Schizer (Columbia), and Laura Weinrib (Harvard).

At the conclusion, John will respond to the commentators.

What’s Louisiana v. Callais About? Not Louisiana.

Stephen Griffin

Today the Supreme Court will hear argument in Louisiana v. Callais, a congressional redistricting case brought under section 2 of the Voting Rights Act.  The litigation started as Robinson v. Ardoin, a garden-variety case in which plaintiffs argued and the district court in Baton Rouge found that the state legislature should be required to create a second “opportunity district” in order to facilitate a racial minority (in this case African Americans) electing a representative of their choice.  Many commentators have speculated that the Court will use the case to undermine section 2 or even rule it unconstitutional.

As I live in Louisiana, I wish I had some spicy local knowledge to add to the news coverage.  But in truth Callais is not so much about anything that anyone in Louisiana did wrong.  That the case exists at all should be put down to multiple ill-advised interventions by the Court.  Louisiana v. Callais should thus be retitled Roberts and Rehnquist Courts v. Voting Rights Act.  It is very much the Court’s story.  The story is about how the Court created unnecessary complications for a reasonably straightforward intervention by Congress in 1982 into an untenable situation created by white southerners in defense of their slipping political power.  It’s quite a story and one that is not easily told – which has led to multiple articles by journalists saying somewhat weakly that the case is “complicated.”  It’s not just journalists.  The Court’s insistence on another round of oral argument has confused everyone.  The briefs are all over the map, guessing what might have drawn the Court’s interest.  I advance my own guess at the end of this post.  For now, some exposition.

It is useful to see the VRA as a product of three historical moments (prior to Shelby County, that is).  The first was the original adoption of the law in 1965 under the auspices of the Fifteenth Amendment, aimed largely at removing obstructions to registration and voting by African Americans in the South.  The second was the rise of the “preclearance” mechanism – to be sure, this was in the original law, but its reach was vastly extended by the Court’s 1969 decision in Allen v. Board of Elections.  Henceforth, even redistricting decisions were subject to review by what was, in effect, an administrative agency inside the DOJ devoted to maintaining a voting rights equilibrium with respect to race.  And the third was the rewriting of section 2 in 1982 to, among other things, order courts to focus on the results of what state and local governments were doing to alter electoral laws to frustrate advancing minority political power.  This third moment requires further explanation.

Why a President Might Decline to Appeal

Andrew Coan

Historically, the federal government has enjoyed extraordinary success when it appeals adverse district court decisions, with a win rate often exceeding seventy percent. Yet for a President pursuing an aggressive and legally contested policy agenda, refusing to appeal while resisting compliance—what I have called “the appellate void” strategy—can offer distinct strategic benefits. Recent calls by influential MAGA personalities to ignore federal court orders have given this possibility renewed salience.

The most significant benefit of the strategy is political rather than legal. By refusing to appeal, the executive branch would strand a dispute in district court, denying higher courts any practical vehicle to intervene. Confronting a single, unknown district judge, rather than the Supreme Court, fundamentally changes the optics of interbranch conflict. The American public knows the Supreme Court as the final arbiter of constitutional meaning. When a President defies the Supreme Court, he challenges the public embodiment of constitutional law itself. To a large and bipartisan majority of the public, such confrontation is likely to be profoundly unsettling.

Beyond political optics, the appellate void strategy avoids the risk of creating adverse nationwide precedent. A single district court decision binds no other court. By contrast, a district court decision affirmed by the Supreme Court becomes the supreme law of the land. For an administration advancing legally dubious policies, the risk of transforming one district judge's opinion into nationwide precedent may exceed the benefit of possible reversal on appeal.

Ultimately, the strategy serves a broader purpose: normalizing executive refusal to accept judicially enforced legal constraints. Each instance of successful defiance or circumvention of a district court order is likely to make the next act of defiance easier, especially if the administration pays little or no political price.

For a fuller explanation, you can read my new paper on the appellate void here. 

The Legality of the Friday Night Massacre

David Super

      Late Friday, the Trump Administration reportedly fired four thousand federal employees.  Details remain sparse at this writing, which is a problem in its own right.  Nonetheless, it appears that, among other things, the Administration gutted the Centers for Disease Prevention and Control (CDC) and eliminated the Office of Special Education.  It also reportedly devastated the Community Development Financial Institutions (CDFI) Fund.  The CDFI Fund is notable as one of the few programs for which congressional Republicans have been willing to publicly advocate with the Administration, presumably because it serves economically disadvantaged areas in both red and blue states. 

      Friday’s firings, of course, come on top of the large personnel reductions made at the behest of Elon Musk’s “Department of Government Efficiency”, the large number of departures resulting from federal employees opting to leave in response to the “fork in the road” message this Spring, and the on-going, lower-profile staff reductions being made across the federal government. 

      Examining the legality of these moves is important in its own right.  It also provides a useful window on what is happening with the Administration’s on-going war on the Rule of Law.  These actions are legally dubious on four different grounds.  Not every action is problematic under all four bases, but some might well be. 

      First, the very action of firing federal employees during a lapse in appropriations likely violates the Anti-Deficiency Act.  The Act prohibits the federal government from incurring obligations or accepting voluntary services without an appropriation for the funds involved.  It provides a narrow exception “for emergencies involving the safety of human life or the protection of property” but makes clear that this exception “does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.”  Firing federal employees does not remotely fall within that exception; through numerous past lapses in appropriations, temporarily unpaid furloughs have fully met the Act’s requirements. 

      The Administration appears to be arguing that these actions are implicitly exempt from the Anti-Deficiency Act, and from the Appropriations Clause that the Act enforces, because they are activities of the President.  Leaving aside the complicated questions that this theory raises even in more plausible applications, these layoffs are hardly actions of the President.  He did not sign or send any layoff notices.  They are actions of the Executive Branch, and the Unified Executive Theory may maintain that all actions of the Executive Branch are actions of the President.  But this theory would prove far too much:  the vast majority of what the federal government does is conducted by the Executive Branch (and much of the rest is done by Congress or the courts, both of which also have constitutional status).  This theory essentially dissolves the Appropriations Clause. 

      Nonetheless, under this Administration, the fact that undertaking these layoffs is likely unlawful during a lapse in appropriations is far less significant than one might hope.  Violations of the Anti-Deficiency Act are felonies, but nobody paying the least bit of attention believes that this Justice Department would care in the slightest.  Indeed, the Department may well have violated the Act in doing the work necessary to indict Letitia James during a lapse in appropriations.  Violations also subject federal officials to adverse personnel actions, but President Trump has brought the Office of Personnel Management so thoroughly to heel that surely none will be taken.  We may debate whether the Supreme Court’s convoluted standing and private right of action jurisprudence would allow federal workers to challenge their firings on this basis. 

      Second, some of these firings might be illegal impoundments of appropriated funds where unexpired appropriations remain available to pay the terminated employees.  In many other instances, these firings likely are preparatory to illegally impounding funds Congress is likely to appropriate in the future – indeed, funds that would be appropriated under the House-passed continuing resolution that Republicans keep demanding Democrats accept.  Many affected agencies spend a large share of their appropriations on staff salaries, and with much of the staff gone, the Administration will have little productive way to spend the appropriated funds. 

      Here again, however, illegality does not equal remediability.  The Supreme Court has rejected the standing of a union and non-profit organizations to challenge the legality of layoffs.  The Court’s cryptic opinion leaves it unclear whether other intended beneficiaries of government employees’ work might have standing.  The Court also has repeatedly found that requiring the federal government to make expenditures during the pendency of an action, even after having lost in a lower court, would harm the Government more than making the intended beneficiaries of those funds wait months or years to be paid.  A Trump-appointed district judge has held that government employees challenging the legality of their firings must first present their cases to the Merit Systems Protection Board, even though that agency has lacked the quorum necessary to act since President Trump illegally fired its only Democratic member.  Finally, because the same appropriations accounts commonly include both salaries and travel expenses, the Administration might try to burn off appropriations for salaries through opulent, unnecessary junkets. 

      Third, this action likely violates numerous permanent laws creating, and assigning duties to. the agencies affected.  For example, Congress has found “that the Centers for Disease Control and Prevention has an essential role in defending against and combatting public health threats domestically and abroad”.  CDC obviously cannot do so if its staff has been gutted.  Similarly, Congress established the Office of Special Education Programs and required that it “shall be the principal agency in the Department for administering and carrying out [the Individuals with Disabilities Education Act] and other programs and activities concerning the education of children with disabilities.”  That cannot happen if the office has lost its crucial staff.  Here again, however, the Supreme Court’s restrictive view of standing and its unwillingness to allow preliminary relief that could require the Government to spend money, even money Congress has required it to spend, may render this illegality practically irrelevant. 

      Finally, this action likely violates several Civil Service laws.  Most obviously, the Administration does not appear even to have tried to comply with the statutory requirement of 60 days’ notice.  (Some reports suggest that the Administration is making some of these firings effective in sixty days.  If so, they would comply with one statute but strain even further the argument that these firings are emergencies qualifying for the Anti-Deficiency Act’s exception.  And they raise further questions about the legality of the Administration committing to the costs of severance when no appropriation is available to pay those costs.)  Given how chaotic this Administration’s past firings have been, one could reasonably ask whether they have complied with laws establishing criteria for determining which individual employees should be fired, setting out the contents of the required notice, procedures for considering employees’ performance in making these decisions, requirements to consult with federal employees’ unions, and prohibitions on the politicization of the Civil Service, among others.  Here again, however, if the Supreme Court insists that these violations be pursued through the quorum-less MSPB, the law is again practically meaningless. 

      Several other actions the Administration has taken recently, such as suggesting that it will continue to pay members of the Armed Forces during the lapse in appropriations but refuse to follow the clear law requiring prompt retroactive payments to furloughed federal workers, may find similarly little legal support.  But, again, with the Supreme Court having largely closed the door to the courts, and with the Justice Department having abandoned its traditional role promoting compliance with law, few effective legal constraints remain on this Administration. 

      For many decades, laws such as those referenced above were enforced by career staff at the Justice Department and in agencies’ general counsels’ offices.  Political appointees theoretically could overrule these attorneys, but doing so was thought to be so scandalous that few dared.  This led to considerable complacency by courts, members of Congress, and the electorate as a whole. 

      It now appears that both the U.S. Code and the U.S. Reports contain significant volumes of quasi-law, principles established by the enactment of laws or the rendering of judicial decisions but that a sufficiently willful administration is practically free to ignore.  Numerous presumptions of administrative regularity are, in fact, de facto delegations to career civil servants, particularly those in general counsels’ offices whom courts have long assumed would be consulted on important matters.  These officials were crucial force-multipliers for the courts, allowing the latter to speak in more muted tones. 

      Now that many such officials have been removed, those that remain are being held to standards of political loyalty, and many of the most important decisions do not appear to be getting vetted at all, the courts’ delegation has collapsed.  An Originalist Supreme Court likely should not have accepted those delegations of responsibility in the first place. It certainly has little justification continuing to apply these ad hoc rules of deference after their entire rationale has disappeared. 

      Most immediately, the more the Administration blatantly violates existing law, the less plausible its arguments that Democrats should end the appropriations lapse (“partial government shutdown”) on the Administration’s terms.  As the Administration demonstrates that neither its words nor those in statutes will effectively constrain its actions, Democrats are increasingly forced to insist on the bluntest possible legislative language in any continuing appropriation. 

      @DavidASuper.bsky.social @DavidASuper1