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“In an executive order last month, President Donald Trump ordered a halt to the distribution of foreign-aid funds so that federal agencies can ensure that those funds are only disbursed in ways that are ‘fully aligned with’ Trump’s foreign policy. Following that order, Secretary of State Marco Rubio ordered a freeze on all foreign-aid programs funded by the State Department and the USAID…
“A divided Supreme Court [last] Wednesday turned down a request by the Trump administration to lift an order by a federal judge in Washington, D.C., that had directed the State Department and the U.S. Agency for International Development to pay nearly $2 billion in foreign-aid reimbursements for work that has already been done…
“Four of the court’s conservative justices would have granted the government’s request to put the order on hold. Justice Samuel Alito, in a dissenting opinion joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, described himself as ‘stunned’ by the ruling, calling it ‘a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers.’” SCOTUSblog
“A federal judge has set a new deadline of Monday for the Trump administration to pay a large batch of backlogged invoices for foreign aid programs, but he sharply scaled back the amount of money that will need to be sent out by then…
“[Judge Amir] Ali’s new order gives the Trump administration until 6 p.m. Monday to pay the plaintiffs in the lawsuits all the money they are entitled to… Contractors and grantees who are not parties to the litigation are not subject to the new Monday deadline, so the money they are owed will likely remain frozen for now. It’s not entirely clear how much money the administration will be required to disburse by Monday, but people involved in the litigation said it appears to be at least several hundred million dollars.” Politico
The left is encouraged by the ruling, arguing that the president cannot refuse to spend money appropriated by Congress.
“Apart from the obvious stupidity of an across-the-board freeze on aid that includes programs like Ebola prevention and detection, the main legal issue with the order is that the president can’t unilaterally suspend funding allocated by Congress… That’s called ‘impoundment’— and it isn’t allowed except under the limited terms of the Impoundment Act of 1974, which permits a 45-day pause if accompanied by an explanation to Congress. The Trump administration openly flouted the law by failing to meet these requirements.”
Noah Feldman, Bloomberg
“This is not a total victory. But at the same time, it is still a huge win… The alternative, if just one other vote had flipped to the dark side, would’ve been $2 billion unpaid for work that has largely already been done. People who’ve fulfilled their end of a contract would’ve been left empty handed. People who are working on vaccine development, feeding people in famine zones, investigating foreign corruption—everyone doing this critical work that Congress saw it to fund would’ve been empty handed.”
Mark Joseph Stern, Slate
“I have come to understand that USAID funding is not popular… But there is a legal way to end this program that Trump and Musk refuse to follow, and I cannot understand why people are not demanding that he end it legally. Republicans control Congress, they can pass a budget that does not fund USAID. Contracts that have already been filled will still have to be paid, but all future contracts and funding can be prevented. This isn’t even complicated.”
Elie Mystal, The Nation
“There’s something deeply artificial about treating the case like an everyday spat over the terms of a contract for, say, military equipment. The funding freeze reflects a comprehensive, deliberate effort to destroy an agency that Congress established and President Trump dislikes. That freeze can be appropriately viewed as a discrete agency action that’s properly subject to APA [Administrative Procedure Act] review…
“The outcome of this arcane jurisdictional dispute may thus effectively determine whether Trump has the power to impound federal funds and dismantle federal agencies. If he does, expect him to exercise that power again. And again. And again. Right now, all we know for sure is that four conservative justices are okay with that outcome, whatever the damage to Congress’s power to control federal spending.”
Nicholas Bagley, The Atlantic
The right is critical of the ruling, arguing that foreign aid spending should be controlled by the president.
The right is critical of the ruling, arguing that foreign aid spending should be controlled by the president.
“Congress cannot force presidents to spend funds that interfere with U.S. national security and foreign policy. The Constitution vests the nation’s leadership on those issues, as the courts have recognized, in the executive branch. Congress cannot use its funding power to subvert the Constitution’s separation of powers; presidents have long refused to spend funds that do so…
“Thomas Jefferson, for example, refused to construct gunboats on the Mississippi River, as ordered by Congress, because they could have unnecessarily provoked Napoleon, with whom he was at that moment negotiating to purchase Louisiana. Presidents Harry Truman and Dwight Eisenhower regularly refused to spend funds on unneeded weapons systems and military units.”
John Yoo, Fox News
“Some foreign aid is explicitly mandated by Congress, and some is committed by treaty. But much of USAID’s statutory mandate is vague and infected with serious mission creep that Congress did not authorize. Presidents are bound by contracts made in the past — but only up to a point. Presidents need not continue work that undermines their own foreign policy…
“[Judge Ali’s] justification was not that the Constitution or a statute required continuing work but that the ‘reliance interests’ of nongovernmental organization (NGOs) recipients — in other words, their interest in continuing to get paid — outweighs the executive’s interest in ensuring that our foreign policy advances the national interest. We could not ask for a better summary of D.C.’s upside-down priorities…
“When the government began reviewing and suspending contracts one at a time, Judge Ali accused the executive branch of using ‘pretexts’ and issued a second [order] with an even shorter deadline commanding the government to blindly fork over $2 billion… To require a president to continue a foreign aid program he opposes, which Congress never authorized, invades core Article II powers.”
The Editors, National Review
“The court used a hypertechnicality to kick the whole mess back to Judge Amir Ali, with a warning to be more specific about what actually has to be paid and how much time it will take… The case will come back at some point anyway, clearly, and the government will suffer irreparable harm in the meantime if it has to pay out $2 billion it can't possibly retrieve… One can understand why Alito sounds so frustrated with this can-kicking by Roberts and the other four justices.”
Ed Morrissey, Hot Air
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