The Supreme Court, taking its first action on President Trump’s sweeping campaign to dismantle federal agencies and programs, temporarily blocked today a cutoff of nearly $2 billion in funding for foreign aid. The order, though, was very narrow and will soon be overtaken by events developing in lower courts.
By a 5-to-4 vote on Wednesday morning, the Supreme Court left undisturbed a federal trial judge’s order demanding that the U.S. Agency for International Development start paying organizations and businesses that had already completed work under hundreds of contracts for overseas health, humanitarian and civic reform projects.
Because this was the first time that the Justices had taken any definitive action on the new President’s wide assault on the federal bureaucracy, the one-page order along with an eight-page dissenting opinion had genuine symbolic value.
What it meant, at the least, is that a Court majority will resist at least some attempts by the Trump Administration to bypass normal court procedures and rush their demands to the top of the judiciary at early, preliminary stages. It thus was a rather tart reminder that the Executive Branch must pay attention to the independent processes of the court system and let them act in the orderly way that they normal do, without being rushed.
The Wednesday order avoided any ruling on the legality of the Trump freeze of the funding; that could reach the Court later. The freeze has already led to widespread disruption of vital programs abroad, layoff of workers by some of the organizations or companies providing the assistance, and, in at least a few instances, the threat of a shutdown of some providers’ entire operations.
Arguing that almost $2 billion in federal money was at stake, the Administration’s lawyers had asked the Court to rule on the final legal questions even though what was actually at issue was the orderly move of a case up through the court system. Wednesday’s result, therefore, told only a little of what the Court might do when one of these major constitutional controversies stirred up by the new President reaches the Justices as a clear-cut legal test.
The new action was based on where things had stood in the lower courts as of two weeks ago. But, since then, the federal trial judge reviewing the dispute – U.S. District Judge Amir H. Ali of Wahington, D.C. – was holding a hearing today that would probably lead quickly to a more explicit decision on the freeze – an order that could be eligible for a regular appeal to the next higher court, the federal Circuit Court in Washington, and then probably on to the Supreme Court within a few days.
In the meantime, Wednesday’s order was not a complete defeat for the Trump Administration because four Justices filed a dissent signaling that they were willing even at this early stage to confront the underlying legal questions about the President’s authority to shut down all or nearly all of an agency’s operations by a swift, blunt and unexplained White House demand. They said that they would have blocked, now, Judge Ali’s temporary order putting the freeze on hold.
Among the legal issues raised by the Administration and echoed by the dissenters are whether the federal government as a “sovereign” cannot even be sued in cases like this, whether the trial judge had any authority to issue any order requiring payment on contracts already completed, whether the judge’s order was in any event too broad in scope, and whether all such disputes over interruption of contract payments are required to be pursued only in a specialized federal tribunal, the Court of Claims. That court handles cases disputing the government’s duty to meet its financial obligations.
Justice Samuel A. Alito, Jr., wrote the dissenting opinion, which was joined by Justices Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas. What is more important about that dissenting lineup is that it will take the votes of only four Justices to grant review when a future case, moving in the regular process, reaches the Court in a more fully developed form.
The arguments made in the Alito opinion could be taken as strong hints of how those four would rule in the end. The opinion was sharply critical of Judge Ali, accusing him of “an act of judicial hubris,” of insulting the “dignity” of the government, and of writing his order in a temporary form in order explicitly to prevent higher courts from interfering. The Court majority, the dissenters asserted, should have treated the judge’s order as a final and binding order fully subject to appeal now.
While the Justices in the majority, who voted temporarily not to get involved at this stage, were not disclosed by the Court, it would have required the votes of five Justices to take their action Wednesday. That meant that the order was supported by Chief Justice John G. Roberts, Jr., and Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.
Their one-page order said that the order by Judge Ali that the Administration wanted blocked at this point was temporary only, had already expired, and that Judge Ali was now moving on to the next stage in reviewing the freeze’s legality. The order did caution Judge Ali that he should make clearer just what legal duties he was imposing on the Administration and to consider carefully what kinds of payment deadlines he would impose on payment of the funds owed to the contractors.
After Judge Ali takes the next step, the Administration would then have the option of appealing on an expedited basis – first to the Circuit Court and then back to the Justices.
