Washington — The Supreme Court on Wednesday declined to halt a lower court order that required the Trump administration to unfreeze nearly $2 billion in foreign-aid funding, clearing the way for the money to flow to groups that have done work for the State Department and U.S. Agency for International Development overseas.
The decision from the high court ends a pause Chief Justice John Roberts issued last week to allow the high court time to more fully consider a request from the Trump administration to intervene in the ongoing court battle over a 90-day pause on foreign assistance funds.
The chief justice issued a brief administrative last Wednesday — with a midnight deadline for foreign aid payments approaching — before the full court acted on President Trump’s bid for emergency relief.
The high court split 5-4 in denying the request from the Trump administration, with Roberts and Justice Amy Coney Barrett joining with the three liberal justices. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh dissented from the denial.
“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?” Alito wrote in a dissent joined by the three other conservative justices. “The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise. I am stunned.”
Proceedings in the case are ongoing, and the district court is set to hold a hearing on the contractors’ request for longer relief Thursday.
Pointing to those ongoing hearings, the court said that 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 is among the first the Supreme Court issued as dozens of legal challenges to the president’s policies move through the federal courts. The high court has been asked to intervene in one other case so far, arising out of Mr. Trump’s removal of the head of the federal agency that oversees whistleblowers. It put off the president’s request to allow him to fire that official, special counsel Hampton Dellinger, amid ongoing legal proceedings and has not yet weighed in further.
The legal fight over foreign aid
The Trump administration came to the high court for emergency relief last week after U.S. District Judge Amir Ali ordered the government to pay all invoices and reimbursement requests to USAID and State Department contractors for work finished before Feb. 13.
Ali is overseeing a challenge to Mr. Trump’s 90-day pause on foreign assistance brought by a group of nonprofits and businesses that receive foreign aid funding and argue the freeze is an unconstitutional exercise of presidential power. Last month, he temporarily barred the administration from halting the foreign-assistance funding. Then, after State Department and USAID contractors said last week that they were still not receiving money they were owed, Ali issued an order requiring the Trump administration to comply with his earlier Feb. 13 directive and pay all invoices and funding requests on contracts, grants and other agreements for work finished before that date.
The judge required the government to pay the contractors by 11:59 p.m. on Feb. 26.
The Justice Department appealed Ali’s order to the U.S. Court of Appeals for the District of Columbia Circuit, but it declined to intervene after finding that order could not be appealed.
In seeking emergency relief from the Supreme Court, acting Solicitor General Sarah Harris asked the court to first temporarily halt the district court’s order — pausing last Wednesday night’s deadline for the administration to unfreeze foreign aid funds — and then toss it out altogether.
Harris said that Ali’s order was not limited to payments to the nonprofits and companies that brought the case, but was more broad and required it to pay nearly $2 billion on thousands of payment requests.
“This new order requiring payment of enormous sums of foreign-assistance money in less than 36 hours intrudes on the prerogatives of the Executive Branch,” she wrote in a Supreme Court filing. “The president’s power is at its apex — and the power of the judiciary is at its nadir — in matters of foreign affairs.”
The acting solicitor general said the district court’s order prevents the executive branch from not only “ensuring that foreign-aid payments are consistent with the president’s policy priorities, but from conducting even basic diligence to ensure that payments are free from fraud and abuse.”
Harris reiterated that in seeking emergency relief, the Trump administration wanted to ensure agencies were not at risk of violating a federal court order requiring the foreign aid payments. But restarting the funding required multiple stages and multiple agencies, she said, making compliance with Ali’s deadline effectively impossible.
“The Executive Branch takes seriously its constitutional duty to comply with the orders of Article III courts,” she said.
But lawyers for the company and nonprofits urged the Supreme Court to deny Mr. Trump’s request, in part because it lacks jurisdiction to review a district court order that directed the government to comply with its temporary measure.
“The government’s application, in this posture, amounts to a request for license to continue defying” a temporary restraining order that requires it to administer USAID and State Department programs established under the law, they argued.
The lawyers said in a filing that Mr. Trump’s Jan. 20 executive order and subsequent State Department and USAID memoranda halting foreign aid and ordering contractors to stop work “plunged” the organizations into “financial turmoil” and forced them to layoff employees. Some are even facing civil and regulatory actions for employment violations, evictions, insolvency and “physical threats to personnel in conflict areas,” the lawyers wrote in the Supreme Court filing.
“Respondents’ work advances U.S. interests abroad and improves — and, in many cases, literally saves — the lives of millions of people across the globe. In doing so, it helps stop problems like disease and instability overseas before they reach our shores,” the nonprofits wrote. “The government’s actions have largely brought this work to a halt. With Americans out of work, businesses ruined, food rotting, and critical medical care withheld, the public interest weighs heavily against the government. These are the fruits of the government’s actions.”
They also noted that since Feb. 13, when the district court issued the initial order, the Trump administration “never once voiced concerns about the feasibility of compliance.”
In his dissent, Alito wrote that because of the Supreme Court’s order, the government must pay the $2 billion at issue “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,” he wrote. “Today, the court fails to carry out that responsibility.”
Alito also took issue with the scope of relief granted by the district court, which required the federal government to pay all invoices and reimbursement requests on all contracts for work completed before the temporary restraining order was put in place.
The lower court, he wrote, “offered no reason why universal relief to nonparties is appropriate here.”
“Today, the court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers,” Alito wrote. He added that while the nonprofit organizations and businesses challenging the funding freeze raise “serious concerns about nonpayment for completed work,” the relief ordered by the district court is “too extreme a response.”
“A federal court has many tools to address a party’s supposed nonfeasance,” Alito said. “Self-aggrandizement of its jurisdiction is not one of them.”
