More About Executive-Order Pushback

From the stroke of noon on Inauguration Day 2025, and continuing all year, the returning administration has unleashed a “Shock-and-Awe 2.0 blitz” of political manifestos and orders turning America upside down. No segment of society has been left untouched.

The charitable sector has reeled from various specific directives during 2025 as well as more generalized – and escalating – warnings from the executive branch about failures to conform or comply. There may be more at stake, it is suggested, than civil consequences or penalties.

Pushback from Charitable Sector

In The Charitable-Sector Pushback Against the Administration: One Year Post-Election (November 12, 2025), FPLG Blog, we applauded the aggressive response on behalf of American philanthropy by the National Council of Nonprofits and the Democratic Attorneys General Association.

The primary strategy is, and continues to be, litigation either in defense or on offense. To get a sense of the size and complexity of the lawsuits in progress, see the excellent chart titled Litigation Tracker: Legal Challenges to Trump Administration Actions  [now updated through November 26, 2025]. It’s by information source Just Security and is broken down by topic areas. For example,  the chart section on claims against the Trump administration on D.E.I.A. issues runs several pages long.

“As we explained in the November 12th post, litigation has not been the only pushback strategy by the organized charitable community and our allies from blue-state justice departments around the United States. ‘It’s critical,’ we wrote, ‘for all resistors to creatively use each and every arrow in their quivers, aiming strategically to hit the various targets.’”

There, we mentioned a noteworthy example: a counter-attack not based on litigating the meaning and effect of a governing statute, regulation, or other official source document like a presidential executive order. Instead, it springs from the inherent jurisdiction and authority of sympathetic state attorneys general to – shall we say – cut the power cords at their ends.

The “Cutting Cord” Example

In How a State AG Can Short-Circuit A Fed Executive Order (November 23, 2025) FPLG Blog, we picked up that thread which is being played out primarily in a series of dueling memoranda between the Trump administration and coalitions of attorneys general from blue states.

See most particularly: “Memorandum for all Federal Agencies” titled Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination (July 29, 2025, 9 pp. PDF), Attorney General Pamela J. Bondi, DOJ. “…[I]n recent years, the federal government has turned a blind eye toward, or even encouraged, various discriminatory practices, seemingly because of their purportedly benign labels, objectives, or intentions. No longer. Going forward, the federal government will not stand by while recipients of federal funds engage in discrimination.”

One of the particular targets for investigation and enforcement, under “Examples of Unlawful Practices,” is: “Race-Based Scholarships or Programs” under the rationale of the controversial 2023 Supreme Court decision in Students For Fair Admissions, Inc. v. Harvard (“SFFA”).

“A few weeks later, in Memorandum to “Entities holding charitable funds (August 20, 2025, 10 pp. PDF), a coalition of ten state attorneys general [Minnesota, New York, California, Connecticut, Delaware, Maryland, Nevada, Oregon, Vermont, and Washington] fired back at the Bondi Memorandum and the administration’s entire anti-D.E.I.A. fixation.”

Within those ten pages, the state AGs undermined the Trump administration’s unsupportable and extreme position on Diversity, Equity, Inclusion, and Accessibility. They also explained why the executive-branch position on “race-based scholarships and programs” in the post-SSFA era is flawed and unacceptable.

They argued in detail why the federal position, particularly but not limited to the context of donor-restricted scholarships, is incorrect and also undermines key concepts of state philanthropy and trust law.

The state attorneys general raise an additional point to support resistance, and it is tinged with delicious irony. Charitable giving (including the honoring and enforcement of donor intent) is protected activity under the freedom of speech and the freedom of assembly prongs of the First Amendment. And the legal precedent comes courtesy of the otherwise unwelcome Supreme Court rulings in Citizens United v. FEC (2010) and Americans for Prosperity v. Bonta, (2021).

State AGs: Historical Role 

The blue state attorneys general grounded their August 20th Memorandum with well-settled points: “It is axiomatic,” they began, “that assets held by any individual or organization for a charitable purpose are held in trust for the purpose specified by the donor.”

A charitable trust exists for the benefit of its beneficiaries; the “ultimate beneficiary of a charitable trust is the public.”

“Because the public at large cannot speak for itself, under centuries of common law codified” by each American state, commonwealth, and territory, “state attorneys general serve as representatives that enforce the interests of the public and donor intent.”  These state charity regulators have “the power to oppose changes that do not meet these standards.”

Honoring Donor Intent: Legal Standards

Under well-established common law, a charitable trustee “has a duty to administer the trust, diligently and in good faith, in accordance with the terms of the trust and applicable law.”

Unless expressly allowed, “the trustee has no power to change the purpose of a charitable trust.” If the donor is not alive, “courts apply the doctrine of cy pres to modify or redefine the settlor’s specified charitable purpose, while courts apply the doctrine of deviation to make changes in the manner or means by which the settlor’s charitable purpose is carried out.”

“[C]y pres is regarded as an extraordinary application…. “Reluctance or unwillingness of the trustee or donee to comply with the donor’s specifications, when not based upon an inability to comply but rather on a desire to change or modify the project, will not sustain court authorization” of a cy pres petition.

The doctrine of equitable deviation, in contrast, allows a court to modify an “administrative or distributive provision of a trust” (as opposed to modifying its purpose) if, because of “circumstances not anticipated by the settlor,” the modification or deviation “will further the purposes of the trust.” However, “[e]quitable deviation is not available until ‘circumstances not known or foreseen by the testator have come about,’ and the cy pres doctrine is not applicable until the charitable purpose ‘is or becomes impossible or impracticable or illegal to carry out.’”

It’s a Federalism Thing

There are 500 years of Anglo-American jurisprudence establishing the extensive power and jurisdiction of state attorneys general over charitable assets and funds. See Chapter 12: Protection and Regulation of Nonprofits and Charitable Assets in the 4th Ed. 2018 of State Attorneys General Powers and Responsibilities. “Attorneys general are charged with the unique and important duty of defending the public’s interest in charitable assets and protecting the hundreds of billions donated to charity every year….” (emph. added)

And then …. there’s federalism.

One of the basic concepts “embodied in the Constitution is federalism, which refers to the division and sharing of power between the national and state governments.

By allocating power among state and federal governments, the Framers sought to establish a unified national government of limited powers while maintaining a distinct sphere of autonomy in which state governments could exercise…” more general powers….[“T]he framers sought to preserve liberty by diffusing power.” See Congress’s own Introduction to the Constitution Annotated: Intro.7.3 Federalism and the Constitution,  constitution.congress.gov, citing The Federalist No. 45 (James Madison): (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”)

Donor Intent: Historical Policy 

“The above legal standards about donor intent and the power and jurisdiction of the state attorneys general … reflect important foundational public policies without which charitable giving cannot succeed. This is illustrated by Alexis de Tocqueville’s 1835 publication Democracy in America, in which he notes the nature of charity to address aspects of society that are unaddressed elsewhere, and to allow donors freedom to give their money to and associate with causes that address the aspects of society that most resonate with their beliefs, so long as it does not result in social harm.”

For example De Tocqueville observed: “Americans of all ages, all conditions, all minds constantly unite. Not only do they have commercial and industrial associations in which all take part, but they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fêtes, to found seminaries, to build inns, to raise churches, to distribute books, to send missionaries to the antipodes; in this manner they create hospitals, prisons, schools. Finally, if it is a question of bringing to light a truth or developing a sentiment with the support of a great example, they associate. Everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States.” Volume II, Chapter V.

For these and other reasons, American society has favored promoting charitable giving through incentives ‘like tax exemption and donor recognition.”

Donor Intent: First Amendment 

The ten attorneys general tell us that “[c]haritable giving is also protected by the First Amendment to the U.S. Constitution. The First Amendment guarantees an individual’s right to freely associate; that is, to form and join groups of other individuals. Therefore, general restrictions on charitable behavior tend to stifle the altruistic, gap-filling goals of private individuals giving money and time to charitable associations.”

For this proposition, they cite Americans for Prosperity v. Bonta, (a 2021 high court ruling not generally well received by the charitable community): “This Court has ‘long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others.’ Protected association furthers ‘a wide variety of political, social, economic, educational, religious, and cultural ends,’ and ‘is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.’”

The charity-regulation officials add, citing Buckley v. Valeo (1976): “In addition to the freedom of association, the First Amendment further upholds donor intent through its protection of free speech. The Supreme Court has long held that the right to free speech and expression includes individual monetary contributions, stating that ‘[a] contribution serves as a general expression of support’ and ‘the expression rests solely on the undifferentiated, symbolic act of contributing.’”

And, since Citizens United v. FEC (2010), First Amendment protections have been “expanded to associations of individuals who donate money.” That is the only good-news crumb from that otherwise odious ruling.

Conclusion

The August 20th letter, the authors tell us, “…serves as guidance to the philanthropic community on navigating directives from donors to fund scholarships and grants for racial minorities and other protected classes in light of SFFA. It also explains how attorneys general may respond to petitions seeking to modify the terms of such gifts, given their obligations to protect donor intent.”

In other words, the attorneys general can and should “just say no.”

Notwithstanding the extensive wreckage of institutional boundaries and norms at the federal level, there are still avenues of pushback and resistance, including substantial power at the state level.

– Linda J. Rosenthal, J.D., FPLG Information & Research Director