City of Salem v. Mullin
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Overview
Overview
The City of Salem, Oregon sued the U.S. Department of Homeland Security and FEMA after the agencies attached new conditions to federal disaster-relief grants the city relies on, including Public Assistance funds already approved to repair storm damage and planned resilience funds to replace the only bridge to Salem's drinking-water treatment plant. The conditions, drawn from a series of 2025 executive orders including Executive Order 14168 ("Defending Women from Gender Ideology Extremism") and Executive Order 14173 (the DEI order), required grant recipients to disavow "DEI" and "gender ideology," to comply with the full text of presidential executive orders related to grants, and to accept that DHS could terminate awards for convenience or when they no longer served agency priorities. Salem argued the conditions were unconstitutional and unlawful under the Administrative Procedure Act. On August 20, 2026, Judge Michael J. McShane granted a preliminary injunction, finding Salem likely to succeed on its separation-of-powers, Spending Clause, and APA claims.
The Facts
Background
Salem relies on three FEMA disaster-grant programs: the Stafford Act Public Assistance program (under which a $1,093,800 award was approved to repair storm-damaged road access to a city pump station), the Building Resilient Infrastructure and Communities program (which Salem plans to use to replace the sole bridge to its drinking-water treatment plant), and the Emergency Management Performance Grant program. The underlying damage came from severe storms and flooding in December 2025, and the President approved Oregon's disaster request in April 2026. DHS then added three conditions to its standard grant terms: a discrimination condition requiring recipients to certify they do not promote DEI or "gender ideology," an executive-order condition requiring compliance with the full text of presidential executive orders related to grants, and a termination condition letting DHS end awards for convenience or when they no longer advance agency priorities.
The Issue
Issue
Whether the Department of Homeland Security may attach these anti-DEI and gender-ideology conditions to congressionally appropriated disaster-relief grants, or whether doing so exceeds the agency's statutory authority, violates the separation of powers and the Spending Clause, and is arbitrary and capricious under the Administrative Procedure Act.
The Rules
The Governing Law
An agency may impose conditions on federal grants only where a statute gives it that power; it cannot create its own authority by regulation, and under the Administrative Procedure Act its actions must not be arbitrary and capricious, which requires a reasoned explanation connecting the condition to the program. Salem invoked the separation of powers, the Spending Clause, and the APA. The court found Salem likely to succeed on all three, holding that no statute authorizes the conditions, that they add requirements beyond existing anti-discrimination law, and that DHS never explained how restricting DEI relates to disaster relief.
The Conclusion
Where It Stands
On August 20, 2026, the court granted a preliminary injunction barring DHS and FEMA from imposing or enforcing the challenged grant conditions on Salem, from requiring related certifications, and from refusing to sign grant agreements or retaliating against the city for suing. The government was ordered to file a compliance declaration within two days, and no bond was required. The court held that no statute gives DHS the power to impose these conditions, that they add requirements beyond existing anti-discrimination law, and that they are arbitrary and capricious because the agency never explained how its restrictions on DEI relate to disaster relief. In the opinion's opening line, Judge McShane wrote that it is hard to imagine the connection between the use of preferred pronouns and the fires currently burning through central Oregon. The ruling is preliminary relief, not a final decision on the merits, and the injunction remains in effect pending further orders.
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