It goes down as a loss for the administration, but the case is not over.
With Chief Justice John Roberts and Justice Amy Coney Barrett voting with the three progressive justices, the Supreme Court has denied the Trump administration’s emergency appeal of an outrageous order by Judge Amir Ali that the government immediately pay out $2 billion in foreign aid payments.
Aptly responding in a dissent joined by three of the Court’s conservatives, Justice Samuel Alito writes, “I am stunned.”
As our Dan McLaughlin reports, the Court’s curt denial of the administration’s application was issued this morning. He’s got you covered. I wrote about the case last week, here, so I follow up with these thoughts.
To recap, late last Wednesday night, at the eleventh hour, the chief justice issued an administrative stay, undoing a midnight deadline to make the payments. It had been imposed by Judge Amir Ali, a controversial progressive Biden-appointee who was barely confirmed (50-49) to his life-tenure seat on the federal district court in Washington, D.C., in the lame-duck session after President Trump was elected.
While this morning’s ruling goes down as a defeat for the administration, it is not clear from the majority’s Delphic one-paragraph opinion that the matter is at an end.
The majority first stated the obvious: There is no longer a pending deadline because the 11:59 p.m. February 26 deadline imposed by Judge Ali has passed — due to the Supreme Court’s intervention. The majority then admonished Ali, before anything further happens, to “clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order [the TRO issued by Ali on February 25], with due regard for the feasibility of any compliance deadlines.”
Reading the tea leaves, I believe the majority is giving Ali a chance to shed some of the more egregiously lawless aspects of his directive. For example, most of the funds he ordered the government to pay in what he disingenuously purported to be a TRO are not parties in the lawsuit; and, for reasons the government has detailed, it is not physically possible to pay hundreds of millions of dollars (let alone $2 billion) at the snap of a cranky judge’s fingers — at least, not consistent with the government’s obligation to ensure that the money is compensation for work actually completed, supported by receipts and the like.
As Justice Alito’s dissent relates, the Trump Justice Department contends that if one eliminates payments that Ali would have the government make to non-parties or for work that may not have been performed, the amount in dispute should be closer to $250 million than $2 billion. Moreover, the government has represented in the lawsuit that it is willing to pay for work that has already been completed pursuant to legitimate contracts, even if the Trump administration would not authorize those contractual arrangements going forward.
Hence, I suspect the Court majority expects that Ali will limit his directive to the claimants in the case and give the government a reasonable time to pay up, as it has indicated it is willing to do. I surmise the justices hope that, if that happens, the case will just go away.
As Justice Alito forcefully contends, however, it shouldn’t come to that.
Judge Ali has no authority to issue the order he issued. It is not actually a TRO because it directs the government to take affirmative steps that will result in irreparable harm — i.e., pay out a whopping $2 billion in taxpayer funds with no realistic chance of clawing it back if, as seems highly likely, the government has sound legal reasons for not paying some or all of it.
Ali misleadingly labeled his directive a TRO to try to evade appellate review — appeals courts do not ordinarily consider TROs because, by nature, real TROs are temporary and don’t alter the status quo (they are basically a “time out” while the court gets its arms around the dispute). Furthermore, the lawsuit essentially involves breach of contract claims; the government has sovereign immunity on those, and Congress has provided only a narrow path for claimants to sue in a specialized tribunal — the U.S. Court of Federal Claims. Judge Ali has no jurisdiction to order the government to pay contract claims.
Justice Alito said he was “stunned” — as were Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, because the simple question presented here is: “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?” As the justice rightly posited, “The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise.” He faulted his majority colleagues accordingly:
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.
Justice Alito is right.