Shocker: SCOTUS Rebuffs Trump on $2B USAID Payments, 5-4 … Sorta

As the old saying goes, You can’t win them all. But this one looked like a fairly easy win, especially after the extraordinary intervention of Chief Justice John Roberts last week. Today’s surprising 5-4 setback might encourage more legal challenges to DOGE cuts, at least in terms of intermediary interference from the federal judiciary.

The Supreme Court rebuffed the appeal on the deadline for the $2 billion in USAID funds that the Trump administration froze, but didn’t order Donald Trump to pay it either. Instead, 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:

A sharply divided Supreme Court on Wednesday narrowly ruled that the Trump administration must comply with a district court order and pay out nearly $2 billion in foreign assistance funds to nonprofit aid groups for work already completed on the government’s behalf. The court ruled 5-4 with Justices John Roberts and Amy Coney Barret siding with the liberal justices. The court did not elaborate on the decision but said the district court judge should “clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.”

Justice Alito couldn’t quite believe that his colleagues went along with Ali’s power grab:

Justice Samuel Alito said in his dissent that he was “stunned” by the majority’s decison.

“Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise,” he wrote.

Worth noting: this is an order, not an opinion, and only an order to vacate the stay Roberts issued last week. The court took no firm position on the merits, and instead sent it back in recognition of the preliminary stage of the case:

Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.

Emphasis mine. So what does that mean? It lets Ali know that the court can’t impose absurd deadlines on the restart of payments that force the government to bypass rational safeguards on spending. The Trump administration appealed the case to Roberts on that basis, claiming that they would comply while waiting for a normal appeal process, but that the deadline was irrational and unworkable. Roberts agreed to at least that extent, or is hinting strongly in that direction. 

In that sense, the administration won itself some breathing room — assuming Ali complies with the sotto voce warning Roberts just sent. 

Otherwise, however, this is an unconstitutional mess, Alito writes in an eight-page dissent joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. And it starts, Alito argues, with the district court’s chicanery around the temporary restraining order (TRO) itself:

To start, it is clear that the District Court’s enforcement order should be construed as an appealable preliminary injunction, not a mere TRO. A TRO, as its name suggests, is “temporary,” and its proper role is to “restrain” challenged conduct for a short time while the court considers whether more lasting relief is warranted. See 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3922.1 (3d ed. 2012). The order here, which commanded the payment of a vast sum that in all likelihood can never be fully recovered, is in no sense “temporary.” Nor did the order merely “restrain” the Government’s challenged action in order to “preserve the status quo.” Northeast Ohio Coalition for Homeless and Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F. 3d 999, 1006 (CA6 2006). Rather, it “act[s] as a mandatory injunction requiring affirmative action” by the Government. Ibid. And given its likely irreversibility, the District Court’s enforcement order effectively gave respondents a portion of the ultimate relief they seek.

That gave the Supreme Court ample jurisdiction to intervene and vacate the lower court order, Alito argues. But even failing that, the court should have instead kept the stay in place while the appellants prepared a writ of certiorari for the Supreme Court to review the case fully. 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. In fact, as Alito notes, neither party actually disputes that point and neither did Judge Ali:

Even if the majority is unwilling to vacate the District Court’s order, it should at least stay the District Court’s enforcement order until the Government is able to petition for a writ of certiorari. In considering whether to issue such a stay, we ask, at a minimum, (1) whether the moving party is likely to prevail on the merits and (2) whether that moving party is likely to suffer irreparable harm.* … 

The Government has shown that it is likely to suffer irreparable harm if the District Court’s order is not stayed. The Government has represented that it would probably be unable to recover much of the money after it is paid because it would be quickly spent by the recipients or disbursed to third parties. Respondents did not credibly dispute this representation, and the District Court did not find that it is incorrect.

One can understand why Alito sounds so frustrated with this can-kicking by Roberts and the other four justices. This isn’t an order suited for a TRO, Ali improperly attempted to prevent it from being appealed, and no one disputes that taxpayers will lose two billion dollars if the White House is forced to spend the money even before a hearing on the merits. It’s an absurd abdication by the court that uses a hypertechnicality to avoid its responsibility.

A legal analyst and friend of mine asks us to imagine the outcry if the administration took the same approach as the court in regard to faits accomplis:

Imagine the anger – and understandably so – if the government had just ignored the order and whenever hauled into court re: its noncompliance the government then argues “well, whatever else has come and gone, so too has the deadline for compliance so let’s all take a fresh look at things.”  And yet that’s the sort of sophistry that the Supreme Court engages in to avoid having to make a decision – which of course is a decision itself.  Certainly if a party quoted this opinion back to the court in support of ignoring compliance deadlines the Court would summarily disregard such argument and probably sanction the party making the argument.  Which tells you everything about how serious the Court is about these things. …

Anyway, the whole ‘the timing for all of this has passed and there’s still a P.I. hearing going on, so we hope the lower court will clarify and keep in mind a few things” is the sort of too cute by a dozen halfs that only a lawyer could find interesting.  So, who knows what happens when this district judge spits in everyone’s – including the Supreme Court’s – face again, but the whole thing is incredibly unfortunate and it only stops when an administration says “Go F*** Yourself” on one of these orders that demands that the government do something.  Only question is whether its a democrat or republican administration who has that moment, at the rate the court’s are going it will inevitably happen and that’s a shame – but a shame that solely belongs to the judicial branch.  

Trump and his administration have always been careful not to cross that line, despite claims from Democrats over the last few weeks. But if the courts will not do their jobs, they may start trying the fait accompli strategy themselves. 

It probably won’t come to it this time, though. Roberts’ order will force Ali to step through each of the spending demands, determine standing for each party, and set a rational schedule. The latter will leave enough time for the Trump administration to appeal and get hearings on the merits. And if Ali balks at approaching this rationally, we know for certain that the Trump administration has four votes to grant cert right now, and that Roberts will be none to happy to have to intervene again in the same case.