National Review Online
Thursday, March 06, 2025
The Supreme Court’s main job is to settle questions of
law that arise in “cases or controversies.” But it also supervises the federal
judiciary. Sometimes, that means getting outside of the Court’s comfort zone of
an orderly appeals process when individual judges single-handedly provoke a
separation-of-powers crisis.
On Wednesday, in Department of State v. AIDS Vaccine
Advocacy Coalition, the Court fell down on that job. It issued a vague
order doing little to rein in D.C. federal district Judge Amir Ali from
inserting himself above the president in running the U.S. Agency for
International Development. The Court’s 5–4 decision, with Chief Justice Roberts and Justice Amy Coney
Barrett joining the three liberals, probably only delays the Court’s rendezvous
with the USAID dispute.
One of Donald Trump’s first-day executive orders declared
“that no further . . . foreign assistance shall be disbursed in a manner that
is not fully aligned with the foreign policy of the President,” finding that
much current aid was “not aligned with American interests and in many cases
antithetical to American values.” These are decisions the president is uniquely
empowered by Article II to make, involving judgments far outside the competence
of the courts.
Some foreign aid is explicitly mandated by Congress, and
some is committed by treaty. But much of USAID’s statutory mandate is vague and
infected with serious mission creep that Congress did not authorize.
Presidents are bound by contracts made in the past — but only up to a point.
Presidents need not continue work that undermines their own foreign policy. If
the government stops work, it must pay for what was done, and for what it
agreed to pay for. In the words of Oliver Wendell Holmes, “The duty to keep a
contract . . . means a prediction that you must pay damages if you do not keep
it, and nothing else.” To require a president to continue a foreign aid program
he opposes, which Congress never authorized, invades core Article II powers.
Moreover, the federal government enjoys sovereign
immunity from lawsuits except where and how Congress authorizes suit. The
statutory process for a breach-of-contract suit against the federal government
requires filing in the Court of Federal Claims, which specializes in federal
contract law — including the government’s legal defenses.
When the Trump executive order imposed a 90-day pause in
disbursements to conduct an orderly review of existing USAID programs,
recipients sued — not in the Court of Federal Claims but under the
Administrative Procedure Act for an injunction before Judge Ali, a progressive
Biden appointee rushed through the Senate 50–49 after the 2024 election on a
day when one Republican was absent.
On February 13, Judge Ali ruled it “arbitrary and
capricious” to issue a “blanket” funding pause without examining every contract
one at a time — thus, delaying the termination of contracts that the
administration considers to be against American foreign policy interests. His
justification was not that the Constitution or a statute required continuing
work but that the “reliance interests” of nongovernmental organization (NGOs)
recipients — in other words, their interest in continuing to get paid — outweighs
the executive’s interest in ensuring that our foreign policy advances the
national interest. We could not ask for a better summary of D.C.’s upside-down
priorities.
Judge Ali called this a “temporary restraining order”
(TRO), but that’s a misnomer. A TRO is supposed to restrain one side of a case
temporarily, so that nothing changes until the court can issue a final order
changing things, which then can be appealed. But Judge Ali tried to force the
government to pay money it can’t get back, including to NGOs that aren’t even
parties to the lawsuit and that cannot be bound by the courts.
What money? That has never been quite clear. The February
13 TRO protects “any contracts, grants, cooperative agreements, loans, or other
federal foreign assistance award that was in existence” before Trump was sworn
in — i.e., every Biden administration policy. The administration says that it
will pay for work already done, but it needs time to review to ensure it is
actually paying money owed for services rendered. Judge Ali set the time frame
too short for that review to happen — compelling the very sort of blanket,
across-the-board response that he has already deemed irrational when the
executive does it.
He doesn’t have jurisdiction over that — only the Court
of Federal Claims does. Barring stop-work orders to extend programs into the
future destroys the fig leaf of just ensuring that NGOs don’t get stiffed. When
the government began reviewing and suspending contracts one at a time, Judge
Ali accused the executive branch of using “pretexts” and issued a second TRO
with an even shorter deadline commanding the government to blindly fork over $2
billion. He has made noises about allowing invasive discovery into the motives
of the executive’s foreign policy decision-making.
After briefly pausing this second TRO, the Court lifted
its stay. With the prior deadline now passed, the Court nudged Judge Ali to “clarify what obligations the
Government must fulfill” with “due regard for the feasibility of any compliance
timelines.” This is judge-speak for a do-over, but it gives Judge Ali time to
make more mischief that can’t be undone on appeal.
We agree with Justice Samuel Alito and the dissenters
that the Court had a duty to put a stop to this. Foreign aid programs exist to
further the national interest, not those of NGOs. One judge, enforcing no
written rule but simply balancing interests committed to another branch, is
abusing the judicial power to invade the executive power while trying to
insulate his decisions from appellate review. Rather than let the situation
deteriorate into a direct conflict between the executive branch and the courts,
the justices should have constrained Judge Ali instead of simply requesting
that he be more responsible next time.
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