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On Wednesday morning, the Supreme Court handed down a brief order effectively compelling the Trump administration to pay out nearly $2 billion in foreign aid that had been unlawfully suspended. The court split 5–4, with Chief Justice John Roberts and Amy Coney Barrett joining the three liberals in refusing to set aside a lower court order mandating disbursement of the funds. On a Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed what the decision augurs for the court’s treatment of Donald Trump in the coming years. A preview of their conversation, below, has been edited for length and clarity.
Dahlia Lithwick: When Trump came into office, his administration froze virtually all foreign aid that had already been appropriated by Congress, including money for programs that people around the world literally relied on to survive. The case was assigned to Judge Amir Ali, a Biden appointee. He ruled for the plaintiffs on Feb. 13, ordering the government to resume the funding. And since mid-February, we’ve been witnessing the Trump administration dodging and weaving around that order to reinstate payments. Judge Ali very openly expressed frustration with how the case was playing out, and last week, he directed the administration to pay for all the work completed before his restraining order kicked in. That amounted to about $2 billion.
Last week, the chief justice stayed Judge Ali’s order. A lot of us thought the pause would signal a willingness on the part of the majority to lend Trump a hand. But it seems we were wrong: Now Roberts’ stay has been lifted and the order takes effect. There’s no way to read this as anything but an unequivocal win for USAID, right?
Mark Joseph Stern: Look, there’s always room for a bigger win. The court’s order is opaque. It didn’t say Judge Ali is correct. Instead, the court just said it was lifting the stay, which means the money must be paid—though the court added that Judge Ali must “clarify what obligations the Government must fulfill,” with “due regard for the feasibility of any compliance timelines.” There’s going to be a process in the lower courts, and more opportunities to appeal. I mean, one of the issues in this case is that typically, a temporary restraining order can’t even be appealed at all. The Trump administration was asking the court to just change or suspend that rule so it could shirk its duty to pay its debts, and the majority refused.
So this is not a total victory. But at the same time, it is still a huge win, because the alternative to this would’ve been disaster and chaos. The alternative, if just one other vote had flipped to the dark side, would’ve been $2 billion unpaid for work that has largely already been done. People who’ve fulfilled their end of a contract would’ve been left empty handed. People who are working on vaccine development, feeding people in famine zones, investigating foreign corruption—everyone doing this critical work that Congress saw it to fund would’ve been empty handed. Now Judge Ali is empowered to say that the money must be paid out, the funds must be disbursed.
That is in itself a huge victory, no matter what happens down the road. The Trump administration has lost and the good guys have won. And for that to be the outcome of the first huge clash between Trump and the Supreme Court in his second term—it’s quite surprising and extraordinary. It suggests to me that John Roberts and Amy Coney Barrett have more of a spine than we have sometimes given them credit for. This is the same majority that refused to block Trump’s sentencing hearing shortly before he became president again. This is a majority that, I think, is going to flex its muscle more and more in some of these cases where the law and the procedure and the facts and everything are clearly going against the Trump administration. That’s more than I thought or feared that we would be getting from this court, especially this early in the administration, when Trump is still kind of popular.
Let’s be super clear: There are sweeping claims here about violation of separation of powers, violation of the Administrative Procedure Act, unlawful impoundment of appropriated funds. None of that is resolved here, right? None of the big questions. They seem like gimme wins for the challengers, but we have nothing on the merits. All we have is: “Turn on the tap.”
You know, it always breaks me that we have to have these conversations about John Roberts and Amy Coney Barrett as potential forces of good, and the whole world is in their hands. But sure, let’s have that conversation. What, if anything, does this tell you about John Roberts and Amy Coney Barrett, who gave us the presidential immunity decision last year? And let me be very clear—so many of the Trump Justice Department filings so far say that the immunity decision stands for the proposition that the president can just do whatever he wants.
Let me build off the insight you offered. The Trump administration really has been throwing around the immunity decision in every filing in every court, especially at the Supreme Court, to mean that Donald J. Trump can do whatever he wants without consequences, and the Trump administration is operating in a law-free zone with the blessing of the Supreme Court. As though it’s just a cudgel against any limitations on Trump’s power.
I think there’s a chance that Roberts and Barrett are starting to resent that. I hate to treat them as saviors, because they aren’t. But it seems that maybe they don’t like the administration trying to weaponize this decision so brazenly against the very concept of a rule of law that exists outside of Donald Trump’s power. Perhaps they do not, in fact, view this decision as creating a monarch who can wield power however he chooses, pursuant to his own whims and cruelties. Maybe they’re turned off by the fact that the Justice Department is embarrassing itself, raising some really thin, tacky arguments that the immunity decision makes Trump a king. Maybe they’re irritated that this administration and the Department of Justice are reading that decision in the most cynical way possible. I don’t think Roberts likes seeing his handiwork twisted and contorted in that way. Now, if Roberts didn’t want this to happen, he shouldn’t have written the opinion in the way he did. He should have been savvy enough to know that it was almost begging to be twisted into something even worse than it was. But we’re here now, and if my suspicion is correct, then we have to give Roberts and Barrett some credit for pushing back, for drawing a line in the sand here.
I also think we have to ask: Are they going to go whole hog on the unitary executive, as we feared? Are they going to say Trump controls the entire executive branch, if not the entire government and country, and he gets to do whatever he wants? Clearly four justices are leaning in that direction. Roberts and Barrett, maybe not so much. It’s difficult to read more into such a brief order, but the impact of this is so huge—$2 billion, right? That’s what has Justice Alito sort of stuttering and blinking in shock. This is a major decision on its own terms.
Let’s talk for a minute about that seven-page Justice Samuel Alito dissent, because it’s a doozy. Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh signed on, and I just want to read the last paragraph from this dissent before we deconstruct it: “Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. The District Court has made plain its frustration with the Government, and respondents raise serious concerns about nonpayment for completed work. But the relief ordered is, quite simply, too extreme a response.”
He’s mad. And he’s blaming Judge Ali. The “stunning,” part, to use his formulation, is that it is not really a meditation on the Impoundment Control Act. It is not really a meditation on separation of powers. It reads like a screed condemning the majority for daring to call a spade a spade and order the government to pay out appropriated money for work that has already been done. So how do we interpret this wailing dissent?
First, let me just say this is an incredibly injudicious, imprudent, nasty dissent that barely pretends to be rooted in the law. I think we should all be disappointed and disturbed that three other justices joined it, especially Brett Kavanaugh. What are you doing signing onto this, Brett? You were at least supposed to pretend to be polite and care about the law. Signing onto this dissent feels to me like an escalation in his sort of loyalty to Trump. Setting that aside, I think it’s so interesting the first time that Alito acknowledges that maybe the Trump administration is actually breaking the law is at the very end of his opinion. At no point prior does Alito seriously grapple with the reality that Trump is illegally impounding appropriated funds. He buries the actual conflict here in order to scream about the majority and Judge Ali.
That’s the other point I want to raise: This is a very personal dissent that seems pointedly angry at Judge Ali himself. Let’s acknowledge that Judge Ali is a Joe Biden appointee. He is actually one of the very last judges confirmed by the Senate under Biden. It was an extraordinarily close vote; he almost didn’t make it through. He was a civil rights advocate before this. And I think it’s pretty clear that Alito is incensed that Judge Ali is actually going to be able to make the government fulfill its obligations. Much of his dissent is just complaining about the way that Judge Ali handled this case.
I have to say, the complaints are pretty rich when everything that Judge Ali did to hold the Trump administration’s feet to the fire was done first by conservative judges to block the Biden administration every time it tried to do anything. In fact, Judge Ali’s orders were more grounded in law and precedent than a lot of orders and decisions from conservative judges under Biden. It’s remarkable that when these conservative judges were boxing in the Biden administration left and right, Alito regularly sided with them. But now Judge Ali issues a much more reasonable order and with a more limited scope that simply says “you need to pay these debts,” Alito freaks out and starts saying that all of this stuff is a shocking breach of judicial conduct. I think that gives away the whole game. Alito is not actually mad about these procedural moves in the abstract. He’s mad that they’re being used against the Trump administration.
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