There’s another twist this morning in Department of State v. AIDS Vaccine Advocacy Coalition.

There’s another twist this morning in Department of State v. AIDS Vaccine Advocacy Coalition, the case challenging Donald Trump’s effort to exert presidential control over the U.S. Agency for International Development. Trump wants USAID to stop paying money to left-leaning causes and non-governmental organizations (NGOs) that, in his view, do nothing to advance the American interests that USAID was created to advance. He has, for the moment, used the blunt instrument of an order halting it from handing out more money and folding USAID into the State Department. The administration emphasizes that USAID’s statute is very vague, and that most of its expenditures are not specifically directed by Congress, so the president should be able to wrest control of them away from USAID’s bureaucrats, who are supposed to work for him. Recipients who want the gravy train to keep coming have sued.

The legal controversy flared up on February 13, when D.C. District Judge Amir Ali (a last-minute Biden appointee who was only confirmed 50-49 by the Senate in late November) issued a far-reaching order:

In the opening hours of his new administration, President Trump issued an executive order pausing all foreign aid for 90 days in order to conduct a review to assure that spending was limited to legitimate work, efficiently disbursed, and aligned with the president’s assessment of American interests. On February 13, however, shortly after the lawsuit was filed, Judge Ali issued what he called a “temporary restraining order” (TRO) blocking the president from halting aid that was already in the pipeline when Trump assumed office.

In Ali’s considered opinion, a blanket pause was not the most rational way to review foreign aid spending. The judge thus presumed not only to order an end to the president’s blanket pause but also to direct that the Trump administration pay all invoices and any similar reimbursement requests for work completed up to February 13. Clearly, this was not a mere TRO but a directive that the administration make payments, including to entities that were not parties to the lawsuit. For Ali, if Congress has approved the spending, the president must spend it, end of story.

The Trump administration complied with the letter of Ali’s order but not its spirit. It halted the blanket pause. But it relied on its authority — constitutional, statutory, and under terms of relevant contracts — to conduct individual reviews of payments. This had the similar effect of stopping the funding flow, which enraged Ali. He threatened to hold executive officials in contempt and ordered that what amounted to close to $2 billion be disbursed by 12:00 a.m…(February 27).

On an emergency application to the Supreme Court, Chief Justice Roberts issued a 10 p.m. administrative stay — basically, halting the effect of Judge Ali’s order until the whole Court could rule on the government’s application. This morning, the Court vacated the application in a 5–4 decision, with Roberts and Justice Amy Coney Barrett joining the three liberals, over a stiff dissent from Justice Samuel Alito joined by the other three conservatives.

There may be less here than meets the eye. The Trump administration has objected, broadly speaking, to the notion that a single district judge can order the executive branch to take affirmative steps in the foreign policy area that are not explicitly directed by Congress in a statute. But its more specific objections to Judge Ali’s order are threefold. First, in principle, the administration objects to any interference with its power to stop funding new work. It has expressed that it is willing to make payments even on grants it dislikes, if the NGOs just submit requests to be paid for work already done. Second, it objects that his order to make payments was on too short a timeline to be workable. Third, there is a congressionally mandated exclusive procedure (a lawsuit for damages in the Court of Federal Claims) when the government fails to pay a contractor; the administration thus argues that Judge Ali has no jurisdiction to order any such payments for work previously performed or previously contracted, especially to contractors who aren’t even parties to the lawsuit.

The Court’s order this morning says:

On February 25, the District Court ordered the Government to issue payments for a portion of the paused disbursements — those owed for work already completed before the issuance of the District Court’s temporary restraining order — by 11:59 p.m. on February 26. Several hours before that deadline, the Government filed this application to vacate the District Court’s February 25 order and requested an immediate administrative stay. THE CHIEF JUSTICE entered an administrative stay . . . and subsequently referred the application to the Court. The application is denied. 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. The order heretofore entered by THE CHIEF JUSTICE is vacated. [Emphasis added.]

What this means is anybody’s guess, but by sending it back to Judge Ali with such open-ended instructions, the Court is encouraging a situation in which he will read this as a green light to do whatever he wants, while the administration argues that he is continuing to exceed his authority. That means the dispute is likely to end up back at the Court, because the administration isn’t going to let Judge Ali destroy its right to appeal by using a TRO or a preliminary injunction to make it pay out money it then cannot get back if it successfully appeals. In the meantime, the Court’s order doesn’t say specifically that the administration has to pay anything to anybody, and seems to contemplate that Judge Ali will merely order that payments be made “for work already completed.” It also suggests that he adjust his tight deadlines to consider “the feasibility of any compliance timelines” — which he doesn’t want to do because if the money takes days to go out the door, the government can appeal again before it has to comply. It at least suggests to Judge Ali that he ought to address this all in a preliminary injunction rather than a TRO; the reason why a TRO usually cannot be appealed is that it typically just orders that the status quo be preserved until a court has time to hear the arguments from both sides.

Justice Alito thinks this order is nonetheless letting Judge Ali’s mischief continue, and that it will compel the administration to pay out the money and lose its right to ever pursue a full appeal. His dissent spits fire:

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) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned. . . .

[Judge Ali] took two steps that, unless corrected, would prevent any higher court from reviewing and possibly stopping the payments. First, he labeled the order as a non-appealable TRO, and second, he demanded that the money be paid within 36 hours. . . .

The Government must apparently pay the $2 billion posthaste — not because the law requires it, but simply because a District Judge so ordered. As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the Court fails to carry out that responsibility.

Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. . . .

A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them.

Justice Alito notes that “recent years have seen a sharp increase in district-court orders enjoining important Government initiatives, and some of these have been labeled as unappealable TROs,” and argues that the Court ought to clarify the standards for appealing them — especially in cases such as this one, where “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.’” He also notes that there’s no dispute from the people asking for the money that if the government pays it, the government will be unable to get it back — that even if they are ordered to do so by the court, that order will not be complied with. The dissenters are sympathetic to the argument that the government ought to pay for services previously rendered, but in Alito’s view, the simple solution is to have the Court decide the case swiftly on appeal.

It’s clear that litigation over what the Court just did will continue. That alone is an argument against it. Then again, as we have seen in past disputes, the fact that Roberts and Barrett are hesitant to wade in at this stage doesn’t tell us for certain where they’ll come out if the case returns to the Court on a less-urgent timeline and in a clearer posture.