A reckless order to pay foreign aid

Last week, the Supreme Court refused to vacate a lower court order requiring the Trump administration to pay out some $2 billion in foreign aid. This led Justice Alito—joined by Justices Thomas, Gorsuch, and Kavanaugh—to issue a blistering dissent questioning whether “a single district-court judge” should have “the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars.”

Justice Alito has a point. The federal courts are supposed to be the “least dangerous branch.” During the ratification debates, Alexander Hamilton wrote that the courts have neither the power of the purse nor the sword. He never envisioned an order like this district court’s. 

The instant pair of cases arise out of the Trump administration’s 90-day pause on foreign-assistance funds. The president issued an executive order directing the State Department to assess programs for efficiency and consistency with American interests and values. The White House, for instance, has exposed problematic funding from USAID and the State Department, ranging from $1.5 million to advance DEI in Serbia, to at least $25,000 for a “transgender opera” in Colombia.

According to the government, the State Department and USAID have been “expeditiously examining each USAID and State foreign assistance award on an individual basis” to determine whether to continue or terminate an award. The government says that review is largely complete and has resulted “in the retention of over 500 USAID awards, worth up to $57 billion, as well as about 2,700 State awards.” The administration has also said that it has paid out $87 million in foreign aid since Feb. 26 and has approved another $70 million.

Meanwhile, businesses and nonprofits filed suit in federal district court, arguing that the pause was unlawful. The district court initially issued an order telling the government to halt its funding freeze. A week later, the district court doubled-down, ordering the United States to pay nearly $2 billion in foreign-aid funding for every pending invoice and draw down request within 36 hours. That’s chutzpah.

Three issues with the district court order particularly troubled Justice Alito. First, the district judge labeled the order a temporary restraining order or TRO. A TRO is ordinarily unappealable. Yet as Justice Alito explained, substance and not labels should govern. A true TRO is temporary. It is designed to put challenged conduct on hold briefly to preserve the status quo while the court considers whether longer term relief is appropriate. Here, the district court’s aid-disbursement order was neither temporary nor designed to preserve the status quo.

Second, the district court likely didn’t have jurisdiction over the dispute. The United States retains sovereign immunity from lawsuits in the federal courts. Congress has waived that sovereign immunity for disputes over the payment of contractual amounts due but specified that such claims must be brought in the Court of Federal Claims, not federal district court.

Third, a court ordinarily has power only over the parties before it, yet the district court order swept much more broadly. Rather than limiting relief to the plaintiffs in the case, it required the government to disburse some $2 billion.  

Yet despite the media coverage, the Supreme Court order denying vacatur was not a home run for the district court. Far from blessing the far-reaching judicial disbursement mandate, the order allowed the judge’s deadline to pass. The Supreme Court then mandated a reset, directing the lower court to “clarify what obligations the Government must fulfill to ensure compliance” with the TRO. And the Court cautioned that the district court must give “due regard for the feasibility of any compliance timelines.” In other words, no more exploding 36-hour payment mandates.

The district judge appears to have received the message. At a hearing last Thursday, the judge narrowed his order to just the parties before the court, requiring the disbursement of tens of millions of dollars. Not pocket change, but a far cry from $2 billion. And Judge Amir Ali didn’t impose a patently unreasonable deadline.

This is good news for the Constitution, which vests the political branches—not the judiciary—with control over foreign policy. The Supreme Court may well have to decide what to do when those branches disagree, if, for example, Congress appropriates funds and the president declines to spend them. But despite the 5-4 decision last week, the entire Supreme Court was clear that the judiciary has a limited role to play when it comes to foreign policy.