White House: Toss NPR Lawsuit Against Defunding Order

“Plaintiffs may feel offended by the EO, but they offer no evidence that it has given rise to any concrete or imminent injury imposed by any Defendant,” said the principal filing. "In short, this lawsuit is an academic exercise right now.”

The White House also pushed back on arguments that the order was unconstitutional or violated federal laws. “Termination of funding based on a viewpoint the government does not want to subsidize is not a cognizable adverse action under the First Amendment,” the filing said, calling for the court to dismiss NPR’s motion for summary judgment and dismiss the case.

NPR has asked the court to block defunding efforts by the Treasury Department, CPB and the National Endowment for the Arts (NEA), but there hasn’t been an action to block, the White House said. “There is therefore simply no need for any judicial intervention at this juncture. The Court should instead dismiss the case without prejudice.”

President Donald Trump’s authority over CPB is the subject of litigation about whether he can fire its board members, and due to that legal challenge, the agency hasn’t acted in the wake of the executive order. “Any dispute over potential CPB terminations of funding is therefore not ripe,” the White House said.

The Treasury Department has continued to pay the CPB since the order was issued, the filing said. While the NEA ended two grants to NPR in May, it happened on the day the grants were set to expire, the filing said. “The terminations did not alter the period of performance for either grant; nor did the terminations withhold or reduce money that had otherwise been due to the Plaintiffs.” NPR “cannot point to any impact stemming from any purported actions of the Defendant agencies implementing the Order. That is because there are none.”

The agencies targeted by NPR’s lawsuit haven’t acted, and the order doesn’t constitute final agency action and therefore can’t be challenged under the Administrative Procedure Act, the White House said. “The EO merely tasks agencies with taking future action consistent with the law; it does not mark the consummation of the agencies’ decision-making process.”

In addition, the White House said the order doesn’t violate laws such as the 1967 Public Broadcasting Act because it directs agencies to cancel funding to PBS and NPR “to the maximum extent allowed by law.” It “does not conflict with any applicable law; it is meant to be applied and implemented consistent with that law.” The White House cited a recent U.S. Supreme Court decision against the Association of Federal Government Employees, in which the court threw out a lower court ruling blocking federal employee layoffs because they were planned but not implemented.

In its filing, the White House admitted that PBS and NPR were targeted in the executive order for their content but said that doesn’t violate the U.S. Constitution because the government is public media’s patron. “The First Amendment allows the President to consider content when the Government is subsidizing (rather than regulating) speech,” it said. “Indeed, were the law otherwise, the Government would be required to subsidize journalistic content (or, for that matter, any activity that expresses a viewpoint or a perspective) that it disagrees with.”

The White House also pushed back on claims that the order violated NPR’s right to due process. Though NPR had argued that public broadcasting laws entitle it to federal funds, the law actually requires that the funds go to CPB for distribution, the White House said. “Any entitlement Plaintiffs have to fund is a matter of contract -- and contracts do not create cognizable property rights protectable under the Due Process Clause.”