Roberts acted just before a midnight deadline imposed by a Biden-appointed judge despite the president’s supremacy in foreign affairs.
Just ahead of a midnight deadline on Wednesday evening, Chief Justice John Roberts gave the Trump administration at least a brief reprieve from a federal district judge’s order that it immediately make about $2 billion in payments that the administration has frozen pending a review of foreign-aid spending.
In a succinct order issued at around 10 p.m. (Eastern Time), Chief Justice Roberts stayed the order of Judge Amir Ali, a Biden appointee to the federal district court in Washington, D.C.
The case, Department of State v. AIDS Vaccine Advocacy Coalition, was brought by a group of non-governmental organizations that perform aid work around the world. Their work has been halted and, they claim, their very existence as aid organizations imperiled by President Trump’s determination to cut off about 90 percent of foreign aid and shutter the U.S. Agency for International Development (USAID).
The case, first and foremost, is about the Constitution’s separation of powers. The executive branch has near plenary power over the conduct of foreign relations, which includes the dispensing of foreign assistance funds allocated by Congress. In the post-World War II era, with the U.S. rebuilding Europe under the Marshall Plan, Congress endeavored to put its stamp on foreign policy, particularly in the Foreign Assistance Act of 1961 (Title 22, U.S. Code, §§ 2151 et seq.), which ambitiously sought to “assist people in developing countries to eliminate hunger poverty, illness, and ignorance.” Concurrently, President John F. Kennedy established USAID by executive order, to oversee foreign aid. Congress thus appropriates funding for foreign aid, informed by requests from the executive branch, and the president doles it out.
The U.S. courts have no constitutional authority over foreign relations, a quintessentially political function. Obviously, there can be tension between the political branches in the matter of whether the president is obliged to spend the money that Congress allocates. But unlike in the domestic realm where Congress has pride of place, the president is supreme in the conduct of U.S. foreign policy (but for express constitutional grants to Congress, such as the powers to declare war and confirm ambassadors, and the Senate’s treaty power). When disputes flare up, both Congress and the executive have constitutional tools to pressure each other in resolving them.
Since the judiciary has neither authority over nor expertise in foreign policy, judges should tread lightly and cautiously when asked to intervene.
Naturally, that hasn’t stopped Judge Ali, a progressive ideologue who was barely confirmed last year on a 50-49 vote in the lame-duck period after Trump’s election. Now-former Senator Kirsten Sinema of Arizona joined Republicans in opposing him, but now-former Senator Joe Manchin of West Virginia abandoned his pledge to oppose radical appointees and joined Democrats to get Ali across the finish line. Republicans might still have been able to stop the confirmation but then-Senator Mike Braun of Indiana didn’t show up for the vote; he’d just been elected the state’s governor and decided his “transition responsibilities” took precedence.
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. today (February 27).
Putting aside the audacity of a judge substituting his judgment for the president’s regarding a basic foreign relations matter, Ali lacks jurisdiction: The government has sovereign immunity on breach of contracts claims; Congress has limited the right to sue to actions brought in the Court of Federal Claims, under a statutory regimen enacted for this specific purpose. The judge has tried to end-run this inconvenience by deeming the matter an action under the Administrative Procedure Act and issuing a TRO on the theory that the administration acted arbitrarily and capriciously.
The Justice Department filed an emergency appeal to D.C. Circuit. But a three-judge panel — comprised of two Biden appointees and one Obama appointee — declined to intervene, reasoning that appellate courts lack jurisdiction to review TROs. Finally, the administration appealed to the Supreme Court. Obviously recognizing that there’s much more than a TRO going on here, Chief Justice Roberts issued his order to put things on hold.
It is an administrative stay — just a short break in the action so the Court has a chance to understand what’s involved before deciding whether and to what extent it should take action. Roberts will undoubtedly refer the matter to the full Court (he caught the case because he is the justice to whom emergency appeals in the D.C. Circuit are directed). He directed the plaintiffs to respond to the Justice Department’s papers by Friday at noon.