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Philip.Baker-Shenk@hklaw.com Mercier, Bryan K [EXTERNAL] clarification for Tribes Tuesday, January 28, 2025 3:11:52 PM image001.png image002.png 2025.1.28 OMB Q&A M-25-13.pdf
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Bryan, I imagine you are in the middle of a firestorm. But my Tribal clients could sorely use your help.
I urge you to post the attached OMB Q&A issued this morning on the BIA website and in a Dear Tribal Leader letter without comment. That would quell much of the panic in Indian Country stirred up by yesterday's OMB memo.
In addition, if at all possible, I urge you to issue something like the following draft statement in that DTLL or otherwise:
BIA will not be pausing the disbursement of Indian affairs appropriated funds that are unrelated to President Trump's executive orders of the last week which involve immigration, foreign aid, international environmental agreements, domestic energy production, DEI, gender identity, and abortion. The White House OMB memo today said "the pause does not apply across-the-board. It is expressly limited to programs, projects, and activities implicated by the President's Executive Orders, such as ending DEI, the green new deal, and funding nongovernmental organizations that undermine the national interest." Virtually all BIA TPA and Pub.L. 93-638 funding falls outside the scope of the President's Executive Orders and so is unaffected by the pause. We are actively examining whether BIA funding that came from the Inflation Reduction Act and Bipartisan Infrastructure Act will be covered by the temporary pause.
Thanks and regards, Phil
Philip Baker-Shenk | Holland & Knight Partner Holland & Knight LLP 800 17th Street N.W., Suite 1100 | Washington, DC 20006 Desk: 202.457.7031 | Mobile: 301.520.0340 | Fax 202.955.5564 philip.baker-shenk@hklaw.com | www.hklaw.com
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET WASHINGTON, D.C. 20503
In implementing President Trump's Executive Orders, OMB issued guidance requesting that agencies temporarily pause, to the extent permitted by law, grant, loan or federal financial assistance programs that are implicated by the President's Executive Orders. Any program not implicated by the President's Executive Orders is not subject to the pause. The Executive Orders listed in the guidance are:
Protecting the American People Against Invasion
Reevaluating and Realigning United States Foreign Aid Putting America First in International Environmental Agreements
Unleashing American Energy
Ending Radical and Wasteful Government DEI Programs and Preferencing
Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government Enforcing the Hyde Amendment Any program that provides direct benefits to individuals is not subject to the pause. The guidance establishes a process for agencies to work with OMB to determine quickly whether any program is inconsistent with the President's Executive Orders. A pause could be as short as day. In fact, OMB has worked with agencies and has already approved many programs to continue even before the pause has gone into effect. Any payment required by law to be paid will be paid without interruption or delay. Q: Is this a freeze on all Federal financial assistance? A: No, the pause does not apply across-the-board. It is expressly limited to programs, projects, and activities implicated by the President's Executive Orders, such as ending DEI, the green new deal, and funding nongovernmental organizations that undermine the national interest. Q: Is this a freeze on benefits to Americans like SNAP or student loans? A: No, any program that provides direct benefits to Americans is explicitly excluded from the pause and exempted from this review process. In addition to Social Security and Medicare, already explicitly excluded in the guidance, mandatory programs like Medicaid and SNAP will continue without pause.
Funds for small businesses, farmers, Pell grants, Head Start, rental assistance, and other similar programs will not be paused. If agencies are concerned that these programs may implicate the President's Executive Orders, they should consult OMB to begin to unwind these objectionable policies without a pause in the payments.
Q: Is the pause of federal financial assistance an impoundment?
A: No, it is not an impoundment under the Impoundment Control Act. It is a temporary pause to give agencies time to ensure that financial assistance conforms to the policies set out in the President's Executive Orders, to the extent permitted by law.
Temporary pauses are a necessary part of program implementation that have been ordered by past presidents to ensure that programs are being executed and funds spent in accordance with a new President's policies and do not constitute impoundments.
Q: Why was this pause necessary?
A: To act as faithful stewards of taxpayer money, new administrations must review federal programs to ensure that they are being executed in accordance with the law and the new President's policies.