While Vought did not refer to the government shutdown specifically in his announcement, the timing is, shall we say, noteworthy, not least because the Democrats’ two top congressional negotiators — Representative Hakeem Jeffries and Senator Chuck Schumer — are both from New York. Secretary of Transportation Sean Duffy later made the link explicit, clarifying in a statement that the real issue with the two projects was a recently released rule — as in, published on Tuesday — “barring race- and sex-based contracting requirements from federal grants.”
There would be a review of the two projects “to determine whether any unconstitutional practices are occurring,” Duffy said, and “until USDOT’s quick administrative review is complete, project reimbursements cannot be processed.” Those reviews “will take more time” thanks to the shutdown, he wrote, reaching his denouement, as “without a budget, the Department has been forced to furlough the civil rights staff responsible for conducting this review.”
The politics behind this gambit are obvious. President Trump has consistently threatened to withhold funding from states, cities, and institutions controlled by or connected to his political opponents.
“I think they very much understand the political dynamics of trying to make an example of New York. They understand where Chuck Schumer lives,” Jackson Moore-Otto, transportation fellow at the Center for Public Enterprise, told me.
The White House wasn’t exactly running away from the political implications of the denial of funding on Wednesday.Vice President J.D. Vance arched a metaphorical eyebrow during a press conference, saying that “I'm sure that Russ is heartbroken about the fact that he is unable to give certain things to certain constituencies.”
Trump has also specifically threatened federal funding for New York City if Democratic nominee Zohran Mamdani wins the upcoming mayoral election.
Duffy himself could not have been any more obvious about what he is trying to achieve by slowing down this funding. “This is another unfortunate casualty of radical Democrats’ reckless decision to hold the federal government hostage to give illegal immigrants benefits,” his statement said, while also specifically calling out the two Democratic congressional leaders, saying that the delayed review was “thanks to the Chuck Schumer and Hakeem Jefferies [sic] shutdown.”
The legality of this — and its legitimate connection to the shutdown — is not so clear.
“It’s pure political maneuvering if you read the statement closely,” David Super, a law professor at Georgetown, told me. “They’re trying to blame the shutdown for slowing their review, but they’re also effectively saying that they’re considering New York in violation of their standards.”
Super also flagged several constitutional and legal issues with the action.
“The funding allocated through laborious means to the Hudson tunnel and Second Avenue Subway is a property right that entities in New York have,” he told me. “The idea that that can be interfered with because someone wants to do an investigation is a blatant violation of due process.”
While it is possible that purported civil rights violations could lead to funding being blocked, “that would have to be established through procedure, not suspicions that they’re doing something wrong,” Super said.
The new rule Duffy referenced addresses a specific set of programs established under the Small Business Act that are designed to give organizations controlled by “socially and economically disadvantaged individuals,” i.e. “women and members of certain racial and ethnic groups,” a shot at winning government contracts.
The DOT argues that under these programs, “two similarly situated small business owners may face different standards for entering the program, based solely on their race, ethnicity, or sex,” and that the rules and legislation defining them violate equal protection as set out in recent federal court decisions and Trump executive orders.
The rule that Duffy cites as justification for his actions is itself constitutionally suspect, Super said. “The Administrative Procedure Act requires public comment on new rules, subject to limited exceptions,” which this did not have.
The slapdash way the rule has been rolled out could open up the DOT to lawsuits, whether from the Metropolitan Transit Authority, which oversees the New York City subway, or another entity involved with the Hudson tunnel project.
“Courts throughout history have insisted public comment is important,” Super said. The DOT is “violating procedures for issuing this policy and violating due process in the way they apply it.”
Moore-Otto also pointed out that the DOT release makes no specific claim that these projects are violating the rule.
“What they’re saying, it appears to me, is, New York might be doing this thing that we’ve just decided is illegal and we’re going to cut off your funding and it’s going to take longer because our lawyers aren’t being paid,” he said.
And there are broader issues around infrastructure policy at play beyond the obvious political gamesmanship, Moore-Otto pointed out. Duffy’s announcement links the supposedly unconstitutional women and minority contracting practices to the high costs that plague American infrastructure projects, saying they’re a “waste of taxpayer resources.”
But, Moore-Otto argued, what really ails U.S. infrastructure projects are extensive administrative reviews and the start-stop nature of project development.
“I think people would broadly agree the U.S. takes too much time and money to deliver infrastructure projects, and they are trying to invoke this as a pretext,” Moore-Otto said. “What strikes me as noteworthy is that when we look at why the U.S. does, in fact, take so long and use so much money building, while the rest of the world builds faster and cheaper, is that there’s a lot of stopping and starting of these infrastructure projects.”
“Assuming it’s a prolonged delay, it’s going to probably drive up costs — even though they’re saying it is a cost saving measure,” Moore-Otto added. “I think that should not be lost on anybody.”
