Other than the fact that it didn’t include the word “Epstein,” it’s unclear what caused President Trump to suddenly concern himself with “cashless bail,” as he calls it, other than his latest thrust to make himself the president who ended crime and win public adoration and a prize. When Trump decides to concern himself with something, he issues an order about it, because “I have the right to do anything I want to do. I’m the president of the United States.”  So the president signed an Executive Order entitled “Taking Steps To End Cashless Bail to Protect Americans.”

Many very smart and knowledgeable people have spent a great deal of time trying to find the “right” answer to dealing with bail and pretrial detention. I’ve been dubious, if not critical, about many of the reforms enacted over the past few years. Then again, I’ve been dubious, if not critical, about the handling of bail before these reforms. Trump’s EO, on the other hand, reflects neither the thoughts nor solutions of smart and knowledgeable people.

Maintaining order and public safety requires incarcerating individuals whose pending criminal charges or criminal history demonstrate a clear ongoing risk to society.  When these individuals are released without bail under city or State policies, they are permitted — even encouraged — to further endanger law-abiding, hard-working Americans because they know our laws will not be enforced.  Our great law enforcement officers risk their lives to arrest potentially violent criminals, only to be forced to arrest the same individuals, sometimes for the same crimes, while they await trial on the previous charges.  This is a waste of public resources and a threat to public safety.

If this reads more like the fevered fantasy of a simpleton, it is. But more importantly, it fails to take into account either the facts or the rationales for why bail should, or should not, be imposed.

As President, I will require commonsense policies that protect Americans’ safety and well-being by incarcerating individuals who are known threats.  It is therefore the policy of my Administration that Federal policies and resources should not be used to support jurisdictions with cashless bail policies, to the maximum extent permitted by law.

As yes, common sense, the explanation employed by those who lack the capacity to express actual reasons for their actions. Has Trump considered that incarceration is what is done to people after they’ve been convicted and not before? It might seem that he, of all people, would recognize the virtue of the presumption of innocence, given his experiences at the defendant’s table. But he attempts to paper over the silliness with the predicate phrase, “to the maximum extent permitted by law,” which is used to save his EOs from being held unconstitutional even when the “maximum extent” may be zero. Hey, at least it makes for a cool performance for his fans.

But Trump’s point isn’t that he has a better method of addressing bail or pretrial detention. It’s that he hates “cashless bail,” which he neglects to define, even though such matters are state issues left to state laws over which he has no authority whatsoever. But that’s not going to stop Trump.

(b)  The head of each executive department and agency, in coordination with the Director of the Office of Management and Budget, shall identify Federal funds, including grants and contracts, currently provided to cashless bail jurisdictions identified pursuant to subsection (a) of this section that may be suspended or terminated, as appropriate and consistent with applicable law.

In other words, if a state enacts a law that Trump dislikes, the federal government is ordered to cut “grants and contracts” to the state. His plan is to use the funds allocated by Congress to the states as leverage to force states to enact, or repeal as the case may be, these undefined “cashless bail” laws. There is no qualification that the grants or contracts have anything to do with bail or criminal law at all. It’s just fed money upon which states rely in everything from building bridges to hiring cops. Want that sweet, sweet fed money? Bend to Trump’s will.

As Ilya Somin explains, it’s unconstitutional to use federal funds in this matter.

Like a number of other Trump policies, this is simultaneously an attack on federalism and an attempt to usurp Congress’ spending power. Supreme Court precedent – most of it authored by conservative justices – holds that only Congress can impose conditions on state and local governments receiving federal grants, and those conditions must be clearly stated in the statutes allocating the funds. There are a number of other constitutional constraints on grant conditions, as well.

But even if abusing the power of the purse to coerce states to bend to Trump’s commands wasn’t unconstitutional, the ramifications of such inanity need to be considered. Could a president cut off fed funding to states that outlaw abortion? Much as the MAGA faithful believe they will be in power forever, just as the woke believed the same before the last election when they wanted to criminalize hate speech, allowing a president to dictate not only what happens at the federal level, but at the state and local level by federal funding extortion would wreak havoc with federalism and the separation of powers.

To add insult to injury, it’s unclear what it is that Trump thinks states should do, other than not have “cashless bail.” Should every person arrested be held in custody pending trial? Should the “potentially violent criminals” of which he speaks be free as long as they can muster the cash or bond? Who knows? But then, this is a very difficult subject that has stymied many a smart and knowledgeable person. For simpletons, the solution is easy if nonsensical.