The White House has issued two new Executive Orders (EOs) concerning criminal justice. These orders, both signed on August 25, 2025, signal the administration’s intent to apply federal resources to influence state and local policies regarding pretrial release. While one order is nationwide in its scope, the other is narrowly focused on the District of Columbia.
The Nationwide Order
The primary EO, titled “Taking Steps to End Cashless Bail to Protect Americans,” establishes a federal policy intended to discourage states and municipalities from eliminating cash bail for certain categories of offenses. The order is premised on the conclusion that policies that permit the release of individuals who present a clear risk of future criminal behavior pose a direct threat to public safety and order. The directive is aimed at jurisdictions with policies related to violent crimes, sexual offenses, and property crimes such as burglary and vandalism.
To carry out this policy, the order directs the U.S. Attorney General to identify and submit a list of all states and jurisdictions that have “substantially eliminated cash bail” as a potential condition of pretrial release for the specified crimes. This list is to be completed within 30 days and updated as necessary. The heads of federal departments and agencies, in coordination with the Office of Management and Budget, are directed to identify federal funds, including grants and contracts, that may be suspended or terminated for the listed jurisdictions.
This EO uses the conditional spending power of the federal government to induce changes in state and local criminal justice practices. The order does specify these actions should be implemented “to the maximum extent permitted by law,” a qualification that implicitly acknowledges the potential for legal challenges to the federal government’s authority over matters traditionally reserved for the states.
The Use of Conditional Spending
The practice of the federal government using its spending power to influence state and local policy is not new. This long-standing practice finds its constitutional basis in the Spending Clause of Article I, Section 8, which grants to Congress the authority to spend for the “general Welfare.” This enumerated power has been a consistent instrument for various administrations to achieve a wide range of policy objectives.
One example is the National Minimum Drinking Age Act of 1984, which conditioned a portion of federal highway funds on the states' adoption of a minimum drinking age of 21. The United States Supreme Court’s 1987 decision in South Dakota v. Dole affirmed the constitutionality of this measure, establishing the legal framework for such conditional spending.
Another example is found in the realm of education policy. Through legislative vehicles such as the No Child Left Behind Act, the federal government tied billions of dollars in funding to state compliance with specific educational standards and testing metrics.
While these historical precedents were based on duly enacted legislation by Congress, a new trend has emerged. Recent administrations have increasingly used executive orders to tie funding to compliance on issues such as immigration enforcement and, now, bail reform. This shift from legislative to executive action raises a new set of legal questions regarding the extent of the president’s unilateral authority to impose such conditions without direct congressional approval.
The Specific D.C. Order
A second, highly specific EO was issued simultaneously, focusing exclusively on the District of Columbia. Titled “Measures to End Cashless Bail and Enforce the Law in the District of Columbia,” this order claims a “crime emergency” in the nation’s capital is allegedly impeding federal government operations. Unlike the nationwide order, this one goes beyond mere financial pressure. It directs federal law enforcement agencies to take more direct action by:
- Working to ensure that D.C. arrestees are held in federal custody to the “fullest extent permissible.”
- Pursuing federal charges and pretrial detention for such arrestees whenever possible.
- Directing the Attorney General to review and request changes to the D.C. Metropolitan Police Department’s policies.
While it shares the same core goal of ending cashless bail, this D.C.-focused order is a distinct and more direct measure of federal intervention.
Conclusion
These Executive Orders represent a notable new front in the ongoing debate over bail reform. While their full legal and practical effects remain to be seen, they clearly signal the administration’s intent to use its authority and financial influence to shape criminal justice policy at the state and local levels. Jurisdictions with cashless bail policies should be aware of these directives and their potential consequences.
