AG Nessel Opposes Proposal by Trump Administration Targeting Diversity, Equity, and Inclusion Programs

LANSING — Michigan Attorney General Dana Nessel has joined a coalition of 23 attorneys general in filing a comment letter (PDF) opposing a proposal by the General Services Administration (GSA) that imposes new certification requirements upon receipt of federal funding, which could require recipients of federal funding to comply with the Trump administration’s guidance and executive order targeting diversity, equity, and inclusion (DEI) programs. In the letter, Attorney General Nessel and the coalition argue that the proposal imposes unjustified and duplicative burdens on federal funding applicants and recipients, violates federal law, and seeks to threaten federal funding recipients away from conducting lawful activities related to DEI, among others.

“The Trump administration has tried to attach vague and unlawful conditions to federal funding before, and those efforts have been consistently struck down by courts,” said Attorney General Nessel. “Now, they are trying it again with a sweeping proposal that would impact all federal funding that our state receives. This proposed guidance is just as unlawful as other attempts by the Trump White House and is just as unacceptable.”

On January 27, GSA published a notice proposing to amend its Financial Assistance General Representations and Certifications, a standard all federal funding applicants and recipients must agree to in order to register for the federal government’s System for Award Management (SAM.gov). Registration in SAM.gov is a mandatory step to apply for and receive federal funding. The proposal includes a requirement that funding applicants and recipients certify compliance with federal laws prohibiting discrimination, and purports to incorporate President Trump’s executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” as well as guidance issued by the U.S. Department of Justice titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.” The order and guidance prohibit recipients of federal funding from practicing programs promoting DEI.

In the letter, Attorney General Nessel and the coalition call for GSA to withdraw its proposal. Attorney General Nessel and the coalition argue, among other things, that:

• GSA’s proposal creates unnecessary and duplicative certification requirements for federal funding applicants and recipients in violation of the Paperwork Reduction Act. The proposal imposes undue burdens on applicants and recipients without justifying why such burdens are necessary for GSA to perform its function as an agency.
• The proposal violates the Administrative Procedure Act. The proposal does not adequately explain why additional certification requirements are needed; exceeds GSA’s congressionally granted authority; and does not follow mandated procedures for providing notice and opportunity for public comment. It also violates the Constitution’s Spending Clause because it fails to meet the clear notice requirement and is unconstitutionally coercive.
• The proposal aims to intimidate entities seeking federal funding away from conducting lawful activity related to immigration and DEI programs.

In filing the letter, Attorney General Nessel joins the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai‘i, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

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