Chief Justice Leaps In To Save Trump DOJ From Consequences Of Defying A Court Order

And cuts the legs out from under every trial judge.

The Supreme Court has once again created a special rule for President Trump. Faced with a threat from the White House to defy a court order, Chief Justice Roberts blinked. At 9:30pm, he issued a stay of a trial judge’s order that the government disburse a reported $2 billion in funds already committed.

As in the Court’s infamous presidential immunity ruling, the conservative justices have made clear that Trump and his minions can break the law with impunity.

Stealing Congress's purse

The first order of business for the Trump administration was to capture government spending. This is in direct contravention of the Constitution, which gives Congress the power of the purse. But on his very first day in office, Trump signed multiple executive orders purporting to freeze all spending to ensure that it accorded with the administration’s “priorities.”

Trump was immediately hit by lawsuits, followed by orders to turn the money spigot back on. He’s currently playing dumb in multiple courts, with Justice Department lawyers claiming that the funding has been restored — it hasn’t — or that the various grants were canceled for some other reason than the plain language of Trump’s edicts.

Pursuant to an executive order suspending all foreign aid to ensure that none of it “shall be disbursed in a manner that is not fully aligned with the foreign policy of the President of the United States,” Secretary of State Marco Rubio issued stop work orders on all foreign assistance, including through USAID. Multiple affected plaintiffs, including the AIDS Vaccine Advocacy Coalition and the Global Health Council, sued in federal court in DC.

On February 13, Judge Amir Ali granted a temporary restraining order (TRO) instructing the government to un-suspend any payments for “appropriated foreign-assistance funds in connection with any contracts, grants, cooperative agreements, loans, or other federal foreign assistance award that was in existence as of January 19, 2025.”

That did not happen, as Grand Vizier Elon Musk himself confirmed in his address to the Cabinet.

Instead the government insisted that it was reviewing all contracts and canceling them individually, not pursuant to the executive order.

It's not a lie if you believe it (and they don't)

According to a February 26 filing, “Secretary Rubio has now made a final decision with respect to each award, on an individualized basis.” And — hey, wouldn't you know! — he’s elected to terminate 5,800 USAID contracts out of roughly 6,200. At the State Department, 4,100 programs out of about 6,800 got the axe.

On its face this would appear to contravene Judge Ali’s TRO. But! Judge Ali caveated his instructions by noting that “nothing in this order shall prohibit the Restrained Defendants from enforcing the terms of contracts or grants.” And the State Department has taken the position that this allows them to slash and burn through every contract, issuing mail-merged cancellations for reasons like “inconsistent with the mission of USAID and divert[s] resources from helping people progress beyond the need for aid.”

The plaintiffs tried mightily to get the government to comply with the court’s order, including by filing a motion for contempt and a motion to enforce, both of which were granted. And at a hearing on Tuesday, February 25, Judge Ali warned that if the funds weren’t restored by midnight on Wednesday, he would consider holding the defendants in contempt.

The government responded by once again filing an interlocutory appeal of a temporary restraining order, which is not appealable. On Wednesday, they raced to the DC Circuit, whining that “the district court has ordered the federal government to pay nearly $2 billion in taxpayer dollars within 36 hours, without regard to payment-integrity systems that would ensure that the monies claimed are properly owed, without regard to the federal government’s meritorious arguments to the contrary, and without so much as addressing the government’s sovereign-immunity defense.”

As Judge Ali pointed out in his denial of stay, the government never before claimed that it was unable to process the payments in timely fashion. And the State Department wasn’t given 36 hours to get the money out — it had two full weeks, since the TRO was issued on February 13.

The DC Circuit seemed incredulous at the suggestion that an order to enforce a TRO was somehow appealable, even if the TRO itself was not.

“Appellants, however, have not shown that the enforcement orders disrupt the status quo by requiring them to do anything more than they would have had to do absent the temporarily restrained agency actions, which are the subject of ongoing preliminary injunction briefing,” they wrote, in an order dismissing the case.

The Chief Justice buckles

But Trump had one more trick up his sleeve, and it was to race down the street to Chief Justice Roberts and demand that he do us a favor though.

“The court’s 11:59 p.m. 30-some-hour deadline thus moved all the goalposts,” acting Solicitor General Sarah Harris wrote, repeating the lie about a newly-imposed deadline. “It is not tailored to any actual payment deadlines associated with respondents’ invoices or drawn-down requests, or anyone else’s. And it has thrown what should be an orderly review by the government into chaos.”

The purpose of a TRO is to preserve the status quo, meaning that this “review” was exactly what the court enjoined. The State Department was instructed to make all payments and stop canceling grants and contracts. The fact that Marco Rubio renamed it a “policy review,” rather than a “review to enforce Trump’s executive order,” is a ruse that the court clearly saw through. The DC Circuit invited a response from the plaintiffs, considered it, and rejected the petition. In short, the Trump DOJ already got a second bite at the apple.

And yet!

On its face, this is just a brief administrative stay, with instructions to the plaintiffs to respond by noon on Friday. Many very smart legal commenters are saying we should not interpret it as lawless and corrupt.

We disagree.

Twice this week the Supreme Court had a chance to make it clear that the Trump administration must obey court orders. And twice the justices refused to do it.

In Dellinger v. Bessent, the case of the improperly fired Special Counsel, acting Solicitor General Harris argued that the Supreme Court should immediately hear an appeal of trial Judge Amy Berman Jackson’s temporary restraining order instructing Trump to put the official back in his job. The SG insisted that any encroachment on the president’s Article II authority is an emergency worthy of immediate relief.

As in the USAID case, the DC Circuit disagreed, refusing to stay the trial court’s TRO in Dellinger. The only appropriate response was for the Supreme Court to do the same, reminding the Trump administration that there is one rule of law, and it applies to everyone. Instead they whiffed on Friday night, purporting to hold the matter “in abeyance until February 26, when the TRO is set to expire.”

And here, when the government stated very clearly that it did not intend to comply with the trial judge’s order to un-freeze the USAID funds, the Chief Justice leapt back in to save the Trump administration from having to obey the law. Again, the only appropriate answer was the one the DC Circuit gave: TROs are not immediately appealable. Instead the Supreme Court undercut the lower courts and allowed the government to continue breaking the law for at least two more days.

Perhaps the conservative justices hoped to avoid the spectacle of the Trump administration openly defying a federal judge. But postponing this crisis by cutting the legs out from underneath District and Circuit Court judges will only make it worse when it arrives next week or the week after.

And it absolutely will arrive. That’s clear from the DOJ’s conduct over the past week. And if it wasn’t, the testimony of three high ranking Trump nominees in their Senate confirmation hearings make it impossible to ignore.

The question was whether it is ever acceptable for the president to defy a court order:

D. John Sauer, solicitor general: It’s hard to make a very blanket, sweeping statement about something without being presented with the facts and the law.

Aaron Reitz, head of the Office of Legal Policy: There is no hard and fast rule about whether, in every instance a public official is bound by a court decision. There are some instances in which he or she may be lawfully bound and some instances where he or she may not be lawfully bound.

Harmeet Dhillon, head of the DOJ Civil Rights Divsion: The president has never asked me to do anything that I found to be objectionable, immoral, unlawful or illegal.

There was one right answer to that question, just as there was one right answer to the motion for stay. And both times, nobody said it.