The big argument is only just beginning.
The big argument is only just beginning.
A s we anticipated in the wake of last week’s Supreme Court intervention in the litigation over the Trump administration’s effort to slash foreign aid drastically, Judge Amir Ali — despite no small amount of chest-beating suggesting otherwise — has modified his demands on what the administration must pay. His new directive, issued on Monday in a 48-page opinion and order, is in line with what the State Department has already agreed to pay, at a pace it can tolerate (and which Judge Ali expressed openness to decelerating if it proves too taxing).
There’s no more “pay $2 billion within 36 hours . . . or else” — the essential substance of Judge Ali’s earlier order, which the Supreme Court, while not overtly vacating it as four dissenting justices urged, effectively gutted and admonished Ali to rework. (See our editorial.)
At the same time, an overarching separation of powers battle looms. On the foundational conceit that the executive branch must expend the foreign aid funding that Congress has appropriated, Judge Ali has not budged.
On that score, it is the Trump administration whose bark exceeds its bite. As the court points out, for all its bold public pronouncements about reviewing Congress’s foreign aid spending to ensure that it aligns with President Trump’s foreign policy priorities, the administration would rather not fight in court. It has not challenged the constitutionality of, for example, the seminal Foreign Assistance Act of 1961. In that act (as I discussed here), and in a plethora of other legislation, Congress functionally conducts foreign policy: It announces objectives and appropriates funding to achieve them, with the expectation that presidents will faithfully execute these laws. Questions of constitutionality aside, that expectation is reasonable given that every president since John F. Kennedy has substantially carried out Congress’s instructions, very much including Donald J. Trump (at least in his first term).
Judge Ali believes (a) that the president’s supremacy over the conduct of foreign affairs is not nearly as dominant as Trump administration rhetoric suggests; (b) that Congress has always played a critical partnership role, and that while presidents take the lead in conducting foreign affairs, they have historically deferred to congressional statutes; and (c) that the separation of powers, in which Congress provides funding and the president expends it accordingly, works the same way in foreign relations as it does in other realms of government activity.
For what it’s worth, I believe the judge is wrong on the third point and makes fair points on the former two. He is surely right, however, that the constitutional question is not yet ripe and it won’t be decided in the lawsuit currently before Judge Ali — certainly not as that suit now stands.
This is a confusing case for lawyers to wrap their brains around, so I can only imagine what the non-lawyer must be thinking.
Here’s my best shot at a straightforward explanation. Most of the strident arguments in the case are about a Trump administration action — a blanket pause of all foreign aid to ensure that it aligned with the president’s policies — that (a) the administration never tried to defend when the NGOs and Judge Ali challenged it and (b) has since been superseded by other actions. That is, the clamor is not over the actual claim in the lawsuit, which makes a lot of it misdirected and hard to follow.
Specifically, on February 13, when Ali issued a temporary restraining order (TRO) that purported to invalidate the blanket pause, the Trump administration loudly complained about the judge’s presumptuousness but refrained from appealing or otherwise challenging his ruling. Instead, the State Department said it would comply with the TRO.
As it turned out, administration complied, at most, with the letter of the ruling, not its spirit. Basically, the State Department shifted from a blanket pause to an individualized review of all foreign aid claims. Since then, the fracas has been about the sincerity and effectiveness of the administration’s compliance.
The plaintiff NGOs insisted that State’s “compliance” was a sham: They haven’t been paid (i.e., regardless of whether State is doing a blanket pause or evaluating contracts one by one, the result is the same: bupkis). Moreover, in light of the thousands of contracts and billions of dollars at issue, the NGOs maintain that State could not conceivably have performed a good faith review.
The administration disputes these assertions. Regardless of who is right, though, this bickering is not what the lawsuit is about. The NGOs sued over the blanket pause, the administration says it is no longer doing the blanket pause, the NGOs never changed their original claim, and the administration never defended against it.
In a fit of pique over the administration’s insistence that it was complying with the order (no more blanket pause) while not demonstrating actual compliance (as the NGOs claimed they were being starved into oblivion, payments were not forthcoming), Judge Ali — after flirting with holding government officials in contempt — issued his unreasonable order ($2 billion, including payments to parties not in the lawsuit) on his unreasonable deadline (36 hours).
That is when the Supreme Court intervened to stop the clock and sort things out. But if you look at the Court’s much discussed one-paragraph admonition (which I described as Delphic), one of the first observations the justices make is that the administration’s emergency petition seeking the Court’s intervention “does not challenge the Government’s obligation to follow [Judge Ali’s original] order” that prohibited the administration’s blanket funding pause.
Since that was the main issue, and it was not really being disputed, everything else was just details. That’s the practical reality that the majority justices grasped — including Chief Justice John Roberts and Justice Amy Coney Barrett, whose shrewdness was lost on many conservative critics outraged that the pair voted with the three progressive justices, while the four dissenting conservative justices vented their spleen at Ali’s audaciousness.
As I said, I agree in principle with Justice Alito’s dissent. But if you were angry at the temerity of a district judge’s ordering the president how to dispense foreign aid, your real problem was with the Trump administration. Far from objecting to Ali’s TRO, it agreed to comply. Ergo, the majority justices figured, all that remained to be worked out were (1) the amount actually due and owing to the NGOs for work already completed, and (2) a reasonable pace at which the government could pay up.
That’s why I concluded, regarding the Court’s order:
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.
That’s what’s happening. The payments, at least for now, are limited to completed work, with the recognition that — even assuming the president must spend what Congress has appropriated — the court cannot compel the government to contract future work with these particular NGOs. (See the Supreme Court’s order: Ali must “clarify what obligations the government must fulfill to ensure compliance[.]”) And the government is processing payments at a rate of about 300 per day, with Judge Ali saying he is open to hearing more from the NGOs about whether the payments are being made and from the State Department about whether the pace of processing payments is appropriate. (See the Supreme Court’s order: Ali must proceed “with due regard for the feasibility of any compliance deadlines.”)
Consequently, I believe the case is going away (at least in its present, unwieldy form). There are still pending disputes. The government objects to Ali’s finding, in favor of the NGOs, that the case is properly a challenge to a final executive agency order under the Administrative Procedure Act that can be resolved by a restraining order; the Justice Department sees it as a series of breach of contract claims that Ali lacks jurisdiction to resolve because they should have been brought in the Court of Federal Claims. In addition, Ali sees the irreparable harm that the NGOs say they could suffer as informed by their reasonable expectation (in planning their business activities) that the funding appropriated by Congress would be expended as it has been in the past; the State Department disputes that proposition. But in the current state of play, these will just be academic quibbles if the government follows through with what it has committed to do.
Indeed, Judge Ali appears to recognize that this round is over; if the NGOs want to press further claims, they will have to bring new and different lawsuits. As he puts it in a footnote (p. 27, n. 11):
To be sure, Plaintiffs may be able to formulate some new challenge to Defendants’ process leading to these later terminations, whether in an APA claim premised on the relevant action or a contractual challenge based on the terms of individual awards. The Court expresses no view as to the proper forum for such challenges or whether they might have merit; the point is that they are distinct from the challenge Plaintiffs currently advance.
All that said, the big argument is only just beginning: Does President Trump have to spend the foreign aid money Congress has appropriated? Plus the corollary questions: Is the president bound by the articulation in statutes of Congress’s foreign policy objectives (or, at least, the articulation of objectives in statutes enacted by prior Congresses, for which the current Congress continues to provide funding)? And does Trump have the unilateral authority — as a function of his inherent Article II power to conduct U.S. foreign policy — to shutter USAID, or at least fold its functions into the State Department?
These profound questions have been raised by the Trump administration’s rhetoric. They have not, however, been joined by the administration’s legal pleadings. In the end, when challenged, the administration gives ground (as it did on Judge Ali’s TRO) rather than going to the mattresses with claims that Congress’s foreign aid statutes are unconstitutional. That’s the separation of powers issue worth watching.