Trump’s lawyers just made a $2 billion mistake

On Wednesday morning, the Supreme Court handed down a very brief order that effectively requires the government to pay foreign aid contractors as much as $2 billion for work they’ve already completed. The Court’s order is quite narrow and is unlikely to have many implications for future cases.

Shortly after President Donald Trump took office for a second time, his administration attempted to halt funding for the US Agency for International Development (USAID). Wednesday’s Supreme Court order is the latest chapter in ongoing litigation over whether cutting off this funding is legal. In that order, the Supreme Court leaves in place a lower court decision which forbade the administration from “suspending, pausing, or otherwise preventing the obligation or disbursement of appropriated foreign-assistance funds” that had been authorized as of January 19.

So this is a defeat for Trump, but it is an extremely small one. The Supreme Court’s order is only one paragraph long, and it mostly says that the Court will not second-guess the lower court because of an amateurish mistake by acting solicitor general Sarah Harris and the other Justice Department lawyers working on this case.

The Supreme Court also decided this case, known as Department of State v. AIDS Vaccine Advocacy Coalition, in a 5-4 vote — with Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh joining a dissenting opinion by Justice Samuel Alito. That means that, despite Harris’s error, four justices nonetheless sided with Trump.

On February 13, federal District Judge Amir Ali issued a temporary order suggesting that the Trump administration’s suspension of USAID funding was illegally arbitrary because the administration has not “offered any explanation for why a blanket suspension of all congressionally appropriated foreign aid…was a rational precursor to reviewing programs” for inefficiency or noncompliance with Trump’s policy goals.

Twelve days later, after the plaintiffs in this case complained that they still had not received payments they are owed by the government, Ali issued a second order seeking to enforce his first. That February 25 order required the State Department and USAID to “pay all invoices and letter of credit drawdown requests on all contracts for work completed prior to the entry of the Court’s [first order] on February 13.”

As Alito argues in dissent, there are plausible arguments that Judge Ali erred when he issued the February 13 order. It’s possible, for example, that the plaintiffs filed their case in the wrong court — Alito suggests this case should have been filed in the Court of Federal Claims, and not in Ali’s US District Court for the District of Columbia.

But the Trump administration inexplicably did not appeal Ali’s February 13 order. Instead, they only challenged the February 25 order seeking to enforce that first order. That means Alito’s concern that some other lower court should have heard this case was not properly raised by the Trump administration.

As a majority of the justices explain in their Wednesday order, “on February 13, the United States District Court for the District of Columbia entered a temporary restraining order enjoining the Government from enforcing directives pausing disbursements of foreign development assistance funds. The present application does not challenge the Government’s obligation to follow that order.”

That said, the majority’s order does call upon Ali to “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,” so there appears to be some concern among the justices in the majority that Ali is requiring the government to fix too much, too quickly.

In any event, all of the issues raised by both the majority and the dissent in the AIDS Vaccine order — whether the government appealed the correct order, whether the plaintiffs sued in the right court, and whether Ali should have proceeded more cautiously — are pretty far afield from the big constitutional questions presented by this case.

The Trump administration claims to have the power to “impound” federal funding, meaning that the president can cancel spending appropriated by an act of Congress. But the president does not have this authority under the Constitution. As future Chief Justice William Rehnquist wrote in a 1969 Justice Department memo, “it is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”

Rehnquist’s view was echoed by Kavanuagh in a 2013 opinion he wrote as a lower court judge, which said that “even the President does not have unilateral authority to refuse to spend” funds appropriated by Congress.

So, if the Supreme Court ultimately rules that the Constitution still applies to Donald Trump — an uncertain prospect after the Court’s decision last July holding that he is allowed to use the powers of the presidency to commit crimes — it will someday need to rule that Trump cannot impound federal spending.

For now, however, the Court appears content to leave that showdown for another day. The Supreme Court’s order in the AIDS Vaccine case touches on none of these big issues, and largely turns on a mistake by Justice Department lawyers that they can correct in future cases.