Legal Threats Loom Over OMB Grant-Control Rule as Comments Close

Higher ed associations, public health organizations and other groups and individuals pummeled the White House’s proposed rule that would, among other things, give political appointees sweeping control over federal grant making. Members of Congress have spoken out against it, and lawyers are threatening lawsuits.

In all, critics are denouncing the proposal’s elevation of appointees’ “independent judgment” over scientific peer review and the many other ways the rule could enable Trump officials and members of future presidential administrations to replace researchers’ decisions on which of their peers’ scientific projects should be funded with the whims of whichever politicians are in power at the time.

As of Monday evening, the final day the public could comment on the proposal, the White House Office of Management and Budget had received at least 300,000 comments. The volume came despite a relatively short comment period: 45 days on the more than 400-page proposal. Multiple groups called for extending the time for comments, including COGR, an organization that advocates for researchers and universities on the federal level and goes only by its acronym.

“The breadth and significance of the proposed revisions limited the ability of recipients and other stakeholders to assess the cumulative impacts, gather supporting data, and develop comprehensive recommendations,” wrote COGR President Matt Owens in the group’s comment. “While we have sought to provide thorough comments, we may not have identified and addressed all potential issues and unintended consequences due to the short comment period.”

Nevertheless, COGR’s comment runs more than 150 pages.

Senate Appropriations Committee Chair Susan Collins, a Maine Republican running for re-election, called for at least a 90-day extension of the comment period. She also denounced the proposal in a letter to OMB Director Russell Vought, saying it would “undermine scientific and biomedical research, and conflict with Congress’ control over the federal funding process,” while possibly disincentivizing “scientific researchers and institutions from seeking the Federal financial assistance they need to participate in multi-year, lifesaving trials.”

The proposal would let the Trump administration cancel already-awarded funding for projects researchers have put in motion—something it’s done before, only to be reversed by judges. Federal agencies could terminate grants that they determine aren’t in their “interest”—a word the proposal doesn’t define. Collins wrote that “termination of clinical trials would leave patients without treatment and could well result in significant scientific and financial losses to both the recipient and the Federal government.”

As the comment period wraps up, some opponents of the regulation said they’re just getting started, with more organizing against it—plus litigation—coming. Kate Peterson, senior attorney with Democracy Forward, said in a webinar Monday that “the fight continues after today.” (Democracy Forward, a legal organization, has sued the Trump administration numerous times.)

“The comments are lining us up—us meaning all of these national organizations and even local organizations—for future litigation,” Peterson said on the webinar hosted by Stand Up for Science, an advocacy organization that’s been coordinating pushback against the proposal.

Jillian Blanchard, senior vice president of climate change and environmental justice at Lawyers for Good Government, said during the event, “Today is the first stop.” When it published the proposed rule, OMB said it wanted the new grant rules to take effect by Oct. 1. Blanchard said the “300,000-plus comments all have to be adequately responded to under the Administrative Procedure Act.”

“A rule that ignores any one of the unique, substantive comments is its own legal challenge in a court of law,” Blanchard said, “and we, along with our friends at Democracy Forward, Public Citizen and so many other litigators, are ready to take this into court.”

Higher Ed Groups Lambaste Proposal

The American Council on Education said in its comment, on behalf of about 50 groups, that the rule would “undermine fairness and proven evaluation processes”; “create significant risks for long-term research and infrastructure investment”; “undermine America’s economic power, global engagement, and influence”; and “transform existing legal requirements into instruments for partisan purposes.”

“We have heard these concerns across the higher education community—from community colleges to research institutions, regional colleges and universities to liberal arts schools, nonprofit partners to civil rights and religiously affiliated groups—as well as from our partners in business and local communities and in the tens of thousands of public comments already submitted to the OMB,” ACE President Ted Mitchell wrote.

Mitchell wrote that the proposal would change what was historically called the OMB’s “uniform guidance” into “a far-reaching regulatory grant framework that would have historic negative consequences and establish a precedent that would last far beyond the administration.”

“The longstanding partnership between the federal government and colleges and universities has been built upon a strong foundation of generally predictable, long-term financial investments and merit-based decision making, paired with a clear respect for institutional autonomy and freedom of inquiry,” Mitchell wrote.

Mitchell also hinted at legal issues if OMB enacts the rule, saying it “exceeds the administration’s statutory authority in numerous areas.”

Waded Cruzado, president of the Association of Public and Land-grant Universities, wrote in the APLU’s comment that the proposal “introduces numerous vague and undefined terms that would reduce transparency, create compliance uncertainty, and increase regulatory and administrative burden on recipient organizations and their subawardees and researchers.”

Cruzado also said it erodes the government–higher ed research partnership by injecting “significant uncertainty.” She wrote, “Enabling discretionary termination based on changing policy priorities would destabilize this relationship, lead to inefficiencies that waste resources, undermine the U.S. research enterprise, and risk ceding American leadership in research to other countries in critical fields of scientific and technological innovation.”

She added that the proposal “raises significant legal, operational, and practical concerns.”

In a message to congressional leaders on behalf of 57 organizations, including the American Diabetes Association and the American Lung Association, United for Cures called on Congress to stop the proposal.

“If allowed to become final, this rule will have profound implications on biomedical research and ultimately the patients we represent,” it wrote.

“Research grants could be terminated at any time, for any reason, with little to no recourse,” the group wrote. “This would leave patients participating in clinical trials without further treatment, potentially wasting millions of dollars in federal funding and taking hope away from individuals who are benefitting from cutting-edge treatments … The uncertainty caused by this would create a chilling effect on researchers and institutions proposing multi-year, lifesaving trials—cutting short the pipeline for discoveries and treatments.”

And United for Cures warned the Trump administration that future presidencies could use the rule to their own ends, saying it would add “a permanent level of politicization to science that will harm future scientific and medical developments,” adding that “tying the ability to award and—particularly—to terminate grants at will to inherently political determinations, which are likely to change from administration to administration, could result in the destabilization of the entire biomedical research system regularly.”

OMB spokespeople didn’t respond to requests for comment Monday. The Heritage Foundation has been calling for comments in support of the proposal, which speakers noted during Monday’s webinar opposing the rule. Douglas Blair, press manager for Heritage Action, a partner group, called claims that the rule would destroy scientific research “hyperbolic” and argued it would increase transparency and reduce funding for things like diversity, equity and inclusion and transgender “ideology.”

“This is a common-sense rule change,” Blair said. “It would get rid of a lot of the problems that organizations like ours see in the federal government.”