Here We Go (Again): Judge Orders Trump to Pay USAID Orgs — By Monday

Is this what the Supreme Court had in mind when instructing Judge Amir Ali to proceed with his TRO ordering payment to USAID groups “with due regard for the feasibility of any compliance timelines”? Two business days?

Ali got the 5-4 reprieve on Wednesday that allowed him to enforce his TRO — a bizarre mechanism to begin with, as Justice Samuel Alito et al pointed out in dissent. The court’s order instructed Ali to “clarify what obligations the Government must fulfill,” and that much he has at least started to do — but has imposed a Monday EOB deadline even without full clarification:

A federal judge is giving the Trump administration until Monday to pay several nonprofit groups and aid organizations that were affected by President Donald Trump’s order to freeze foreign assistance and shut down the U.S. Agency for International Development.

In a ruling Thursday, U.S. District Judge Amir Ali formalized a plan to ensure the federal government releases funds to at least nine groups, including the Global Health Council, Chemonics International and the AIDS Vaccine Advocacy Coalition. …

Ali on Thursday did not order the administration to pay the full $2 billion by the deadline of 6 p.m. ET Monday but instead ordered the payment of a yet-to-be determined smaller amount to the aid organizations named in the suit.

He requested more information from the plaintiffs in the case by noon Friday, which will determine the payment amount and specific recipients.

So this isn’t even two full business days. The Trump administration won’t get the actual amounts and specific recipients until later today, and then must send out payments no later than the end of the business day on Monday. That’s about twelve business hours.

Bear in mind that the government made a good-faith offer to process the payments in “not more than ten working days,” according to a filing by the Department of Justice. They noted that the disbursal of funds on a snap basis involves “a number of logistical problems” to overcome, but ten days is a reasonable offer. The plaintiffs countered with a demand to receive the payment by March 14 — a week from today, three days earlier than the DoJ request but four days later than Ali’s order. 

So why Monday? Two possibilities come to mind, and they are definitely not mutually exclusive. First, Ali might want to prevent another appeal of this order from reaching the Supreme Court again, where he knows four justices want another crack at this case. Second, Ali may want to punish the Trump administration for challenging him as well as cutting this spending, and is setting them up for a failure which will allow Ali to assess punitive damages and other sanctions when compliance can’t be achieved. 

That may be why Ali is holding off on the specifics on the amounts and recipients, too, although that’s more of a hindrance than an obstacle to appeal. They will need the full order before taking this to the DC Circuit court of appeals, which tried to slow-walk the last appeal before John Roberts reached down and grabbed it out of frustration. This time, the DoJ may appeal to both levels concurrently, especially since it’s clear that Ali is defying the Supreme Court order to consider the “feasibility of compliance timelines” with another absurd deadline for payment. That should come back before the court that issued the instruction, and again, at least four justices would agree. 

This wouldn’t have happened at all, if Roberts had listened to Alito and the other three justices in the first place. The very form of this order is improper, as Alito wrote, and the payments should be held until a trial on the merits. Now we get to do this all over again. Will the Supreme Court finally take proper action — or will Roberts and Amy Coney Barrett kick the can again?