The Trump administration’s apparent efforts to coordinate a series of retributive actions against Colorado late last year are largely unprecedented and were likely not legal, constitutional law professors told The Denver Post.
“It’s the kind of thing that’s so blatant and unprecedented, it’s almost hard to find the language to describe it,” said Jonathon Booth, a historian and associate professor at the University of Colorado’s law school. “It’s so far beyond what every other administration has attempted to do.”
As President Donald Trump publicly campaigned to free Tina Peters from a Pueblo prison, officials from several federal agencies were summoned to a December meeting to “brainstorm” actions that could be taken against Colorado. The email, disclosed in a court hearing last week and reported Thursday by The Post, was followed by cuts to grant funding, the denial of disaster relief aid, scrutiny of Colorado’s food stamp program and the planned dismantling of a Boulder research lab.
In court filings, Justice Department attorneys essentially acknowledge that the Trump administration has taken adverse action against Colorado because of the state’s political leanings — and that there’s “no legal basis” preventing the president from doing so. The White House denied that the various adverse decisions were taken because of Peters, a former Mesa County clerk and Trump ally who was serving a prison sentence for giving an unauthorized person access to secure voting equipment.
“The Constitution has always permitted governmental entities to make decisions based on political or geographic considerations — hence earmarks and “pork-barrel spending,” federal attorneys wrote in June, in response to a lawsuit filed by Colorado Attorney General Phil Weiser alleging sweeping retribution against the state.
But three legal experts who spoke to The Post said the federal government could not punish states purely for partisan ends. The federal government can’t simply withhold or redirect congressionally appropriated funding to states because of partisan desires, said Doug Spencer, the chair in constitutional law at the University of Colorado. Nor can it make decisions for arbitrary or capricious reasons, as the state alleges several of the adverse decisions were.
While Congress successfully used highway funding to enforce a nationwide drinking age in the 1980s, the Supreme Court upheld the effort because federal lawmakers had passed legislation backing it. But when Trump was first elected and attempted to withhold funding from states that didn’t work with federal immigration authorities, federal courts rejected the move for the same reason: A federal appellate court wrote that if the administration could determine policy and use funding to force it without Congress’s approval, then a “check against tyranny is forsaken.”
Even balanced against the earlier immigration move, the efforts described in the email and in the state’s lawsuit are unprecedented, the experts said.
“The scale and the open partisan retaliation – it’s just totally different,” Booth said.
According to other evidence disclosed in the case, five presidential staff members — including Emily Underwood, who sent the “brainstorm” email — were given updates about a letter that the Agriculture Department was sending to Colorado about a rapid re-examination of SNAP recipients. Stephen Miller, Trump’s deputy chief of staff, is listed among federal officials involved in the decision to deny disaster relief to the state. Ten presidential and budget office staff, including Underwood, were involved in discussions or meetings about Colorado’s Energy Department funds in December and January 2025.
“I can’t think of anything that is so brazen,” Spencer said. “I think that presidents are always concerned about the politics, they’re always hoping that certain states will enact or enforce the policies that they’re (supporting) and maybe they use funding as kind of a shield against states going rogue. But this is the first instance I’m aware of that the executive is using the funding as a sword.”
Aziz Huq, a law professor at the University of Chicago, said that some prior administrations had misused the Justice Department’s settlement fund, and he pointed to the system of government patronage that existed in the first century of the country’s existence. But he otherwise struggled to think of an analogous situation taken by a previous administration, and he argued that the partisan retribution likely also violated the First Amendment.
He said the federal and state governments had previously operated under the joint understanding that the government did not exist to achieve partisan or personal ends. But that understanding, he said, has broken down.
“Regardless of the technicalities of the law, it’s really hard to see how you run the government as if it was a partisan protection racket and maintain democratic norms,” Huq said. “It’s really hard to see how you square this with any kind of commitment to democracy as a going concern.”
The disclosure of the email drew public criticism from Colorado’s Democratic senators, Michael Bennet and John Hickenlooper. Hickenlooper said the document “confirms the highest levels of the White House orchestrated a campaign of political retribution against Coloradans over President Trump’s petulant grievances.” He called on the inspectors general of every federal agency to investigate whether federal resources were used to target Colorado.
Bennet called The Post’s reporting “proof of what Coloradans already know to be true: Donald Trump is weaponizing the federal government to punish Colorado.”
While governors and presidents have often disagreed, states and the federal government have always partnered on projects like infrastructure or Medicaid. But Huq warned about the broader effects that may unspool if trust between the federal and state governments is broken and cannot be healed, even under subsequent presidents.
“That is the big unanswered question for me, which is — once you screw up the way governing and providing services is done in the United States, what happens?” Huq said. “Can you just be like, ‘Forget it, we’ll do a mulligan?’ I don’t know. It doesn’t sound plausible me that would happen.”
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