After a hectic two days during which it seemed that all federal grants were subject to an immediate shutdown, we’re back to the same base level of uncertainty at which we started the week, asking: how much is the new Trump Administration really trying to impose its new policy edicts on ongoing grant programs?

For starters, everyone should bookmark this page on their web browser. It is the official Federal Register list of all of President Trump’s 2025 Executive Orders, with their official EO numbers and links to the official legal text and cross-links to all of the previous Orders that then new Orders repeal or amend. (It took until two days ago to get all of the January 20 EOs online this way.)

In particular, transportation interests were having a hard time digesting section 7 of EO 14154, “Unleashing American Energy,” which ordered all agencies to “immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 (Public Law 117-169) or the Infrastructure Investment and Jobs Act (Public Law 117-58), including but not limited to funds for electric vehicle charging stations made available through the National Electric Vehicle Infrastructure Formula Program and the Charging and Fueling Infrastructure Discretionary Grant Program, and shall review their processes, policies, and programs for issuing grants, loans, contracts, or any other financial disbursements of such appropriated funds for consistency with the law and the policy outlined in section 2 of this order.”

The result was chaos, with the Federal Highway Administration shutting its entire program down at lunchtime on January 21, since all its money (save the emergency relief program) came from one of those two laws, before the Office of Management and Budget issued a clarification late in the day that got most of the program money flowing again. But that still left questions about how the two programs singled out in EO 14154, and other programs that may be against the Trump policy agenda, were going to operate. There were still reports of delays and problems in the federal grant computer system for those programs, but nothing official from USDOT.

Then, on Monday night, January 27, OMB blew up the world by issuing a near-complete freeze on all grant obligations and outlays effective the following day at 5 p.m (memo M-25-13). The intent of this one was apparently to treat all grant programs as being guilty of violating Trump Executive Orders until the grant program managers could prove them innocent. But the chaos caused by this one was intense, mostly because again, whoever wrote that memo was a budget amateur and the focus on “disbursements” (outlays) gave it away. Once an outlay is due, it’s too late to cut the program. That’s why Gramm-Rudman-Hollings never wound up cutting spending – because the process focused on outlays, once it was too late to cut.

The following day, OMB sent out a clarification memo which didn’t really clarify anything, and by the end of the day, a federal court had issued a temporary administrative day order halting the implementation of the freeze. (That stay order was not particularly well-written either and would have been confusing to implement.) OMB then pulled the plug at lunchtime on the 29th, issuing M-25-14 which nullified M-25-13 in its entirety.

But we are still in a situation where Trump Administration appointees, at OMB and the agencies, are scouring federal grant programs and trying to isolate ones that encourage DEI, or wind farms, or electric vehicles and their infrastructure and find ways to shut them down. If successful, this has to wind up in court, and sooner than later.

Take for example the NEVI program. The appropriation language in Division J of the IIJA appropriates $5 billion “to carry out a National Electric Vehicle Formula Program (referred to in this paragraph in this Act as the ‘‘Program’’) to provide funding to States to strategically deploy electric vehicle charging infrastructure and to establish an interconnected network to facilitate data collection, access, and reliability” and states that the funds “shall be used for “(1) the acquisition and installation of electric vehicle charging infrastructure to serve as a catalyst for the deployment of such infrastructure and to connect it to a network to facilitate data collection, access, and reliability; (2) proper operation and maintenance of electric vehicle charging infrastructure; and (3) data sharing about electric vehicle charging infrastructure to ensure the long-term success of investments made under this paragraph in this Act.”

The first thing they teach you on Day 1 at legislative drafting school is that the word “shall” means you have to do it and the word “may” gives you an option. These are “shall” instructions in law, and as such, courts have consistently ruled that those kind of instructions override executive orders.

Now here is the relevant language from President Trump’s EO 14154: that federal agencies should consider “the elimination of unfair subsidies and other ill-conceived government-imposed market distortions that favor EVs over other technologies and effectively mandate their purchase by individuals, private businesses, and government entities alike by rendering other types of vehicles unaffordable.”

It certainly sounds as if the EO and the law are incompatible. Getting a court to act on it will be easy if the Administration admits they are just ignoring the law becasue they dislike the policy. But if, instead, they argue that they are trying to find more efficient ways to implement the policy, or something like that, the courts might give them a long leash, because the appropriations for NEVI, like many appropriations for federal capital programs, are “available until expended” and don’t expire. Under various federal court precedents, it is much easier for a court to order the Administration to release impounded funding if the funding will otherwise lapse, because courts have seen a lapse of funding as akin to repeal of the funding (as if the appropriation had never taken place), and to repeal a law takes a new law. But courts have been more hesitant to get involved in forcing the release of “until expended” appropriations.

There is also the issue of what happens to EV programs not specifically listed by the Trump order. The Carbon Reduction Program is a federal-aid highway formula program that allows states to use its funds for a variety of objects, including the purchase and construction of EV charging infrastructure for the public. If anyone at a state DOT is having trouble getting a project agreement for that purpose approved, or a reimbursement request for EV stuff denied, please let us know.

Until then, there is no clarity from DOT as to which grant programs, if any, are still on hold.