Justices Roberts And Barrett Decide Not To Destroy Democracy ... Today

You're making things up again, Sammy!

On Wednesday, the Supreme Court dissolved the administrative stay it entered one week ago in AIDS Vaccine Advocacy Coalition v. Department of State. The New York Times reported that the Court “rejected” President Trump’s blanket freeze on foreign aid and his bid to block $2 billion in payments for grants already disbursed and services already rendered.

The reality is that Chief Justice John Roberts and Justice Amy Coney Barrett joined the Court’s three liberals to beat back an invitation to utter lawlessness by the Trump administration. Justice Alito penned a wildly mendacious dissent, which was joined by Justices Thomas, Gorsuch, and Kavanaugh, expressing the view that the judiciary has no power to restrain the sitting president. And now the country sits on a knife edge, with four votes to let the Trump administration flout judicial orders, three votes for the rule of law, and Roberts and Barrett the only bulwark against despotism.

On the plus side, we can probably retire the thesis that Brett Kavanaugh is part of a three-justice “center” on the court.

Procedural History

On February 13, Judge Amir Ali of the US District Court for DC issued a temporary restraining order requiring the State Department, USAID, and the Office of Management and Budget to return to the status quo before Trump took office and resume disbursing foreign aid allocated by Congress back in 2024. Specifically, Judge Ali’s order prevented the government from “suspending, pausing, or otherwise preventing the obligation or disbursement of appropriated foreign-assistance funds” to contractors and grantees.

Notwithstanding Judge Ali’s clear directive, the Trump administration kept right on illegally withholding the money. And so Plaintiffs returned to Judge Ali, filing two motions to enforce the TRO and make the government pay what it owes. The State Department responded with the preposterous claim that it was conducting an individualized, case-by-case assessment that just so happened to result in the termination of virtually all foreign aid grants and contracts called for in the enjoined executive order.

Judge Ali granted both motions, and, after oral argument on February 25, instructed the government to comply with his order and release $2 billion of improperly withheld funds on or before midnight on February 27.

Instead, the Trump administration raced first to the DC Circuit and then to the Supreme Court, whining that it couldn’t possibly release the funds “within 36 hours.”

The DC Circuit told them to get bent, since TROs are definitionally not appealable. But with less than three hours left on the clock, Chief Justice Roberts issued an “administrative stay,” effectively giving the government carte blanche to continue ignoring Judge Ali’s order while the nine justices considered the matter.

A full week later, the justices finally finished considering and decided to lift the stay… sort of.

The majority’s one-paragraph order said nothing about the government’s obligation to comply with a TRO which is now three weeks old. Instead, it instructed the trial judge 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.” With the hearing on the preliminary injunction scheduled for March 6, Judge Ali immediately ordered the parties to file a joint status report proposing “milestones and timelines for Defendants coming into compliance” with the TRO and any preliminary injunction. In the meantime, whistleblowers from inside USAID have sworn under oath that the Trump administration “has no intent” to repay any outstanding debts and is deliberately trying to “bankrupt” foreign aid recipients by refusing to release the funds.

The Dissent Looms Large

If the majority was timidly right, the dissent was stridently wrong. Snorting derisively about “a single district-court judge who likely lacks jurisdiction,” Justice Alito took a series of shockingly dishonest shots at Judge Ali that distorted virtually all of the facts and the law.

First, the justice inquired sarcastically as to whether a trial judge has “the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars.” Of course, Congress had the power to compel the government to expend funds, which is why it allocated them in the first place. But having laid out his farcical premise, Justice Alito replied to himself that “the answer to that question should be an emphatic ‘No.’”

The legal answer to that question is, in fact, an emphatic “Yes.” That $2 billion was in the pipeline and required by law to be paid until the Trump administration illegally blocked it. And courts routinely act to preserve the status quo, even when the numbers are large. As for the “lose forever” part, the government retains the legal rights it always has in the event that any part of that $2 billion for services already rendered was wrongfully awarded (not that there is any such evidence).

Next the dissent claimed that, after Judge Ali issued the February 13 TRO, the judge supposedly “grew frustrated with the pace at which funds were being disbursed” and “issued a second order requiring the Government to pay out approximately $2 billion.”

None of that is true. Judge Ali did not, sua sponte, “grow frustrated” with the government. He ruled on two motions to enforce the TRO brought by the plaintiffs. And any frustration was not over “the pace” of the disbursement of the funds — it was over the government’s refusal to comply with the TRO at all.

Most shockingly, Justice Alito accused Judge Ali of improperly seeking to “prevent any higher court from reviewing and possibly stopping the payments.” First, Justice Alito claimed the trial judge “labeled the order as a non-appealable TRO,” which is a very weird way to say that Judge Ali entered a TRO. (It isn’t his fault that TROs are non-appealable.) Then Judge Ali “demanded that the money be paid within 36 hours,” which is an equally weird way of describing an order to enforce a TRO which was by then two weeks old.

Moreover, as Judge Ali pointed out, the government never argued that it couldn’t comply with the TRO at any point before February 25:

Defendants’ principal basis for staying the Court’s ruling pending appeal appears to be that they can only partially unfreeze funds within the additional 36 hours that the Court gave them, and that they need more time to unfreeze the funds at issue in Plaintiffs’ latest motion to enforce. This is not something that Defendants have previously raised in this Court, whether at the hearing or any time before filing their notice of appeal and seeking a stay pending appeal. (emphasis added)

But perhaps the dissent’s most unfair criticism is its claim that Judge Ali “brushed aside the Government’s argument that sovereign immunity barred this enforcement order.”

Sovereign Immunity

To the extent that Judge Ali “brushed aside” the sovereign immunity argument, that is because the government never made it until long after Judge Ali entered the temporary restraining order in the first place. To be clear: the Trump administration did not claim sovereign immunity in its opposition to the TRO; nor at oral argument on said TRO; nor in its opposition to the motion for sanctions for its failure to comply with the TRO; nor even in its subsequent motion for clarification.

The first time the government even suggested that sovereign immunity claims might come into play was in its February 21 opposition to the entry of a preliminary injunction. In that brief, the Trump administration characterized the sovereign immunity argument as a failure by the plaintiffs to exhaust their administrative remedies pursuant to the Contracts Dispute Act of 1978 (“CDA”). Here’s how they framed the argument to Judge Ali:

After a properly submitted CDA claim has been exhausted, the proper forum is either the Civilian Board of Contract Appeals, which has jurisdiction to decide any appeal from a decision of a contracting officer on a contract made by USAID or the Department of State… or the United States Court of Federal Claims.

In other words, the government never argued sovereign immunity as some sort of Article II bar to the plaintiffs’ claims. Instead, the government made at most a technical argument that plaintiffs should have filed their complaint in the Court of Federal Claims instead of District Court.

However, there are at least three problems with the administration’s sovereign immunity argument. First, the CDA only applies to claims of nonpayment arising out of procurement contracts brought by government contractors, and not to challenges by grant recipients (who, by law, are not contractors).

Second, even if the CDA did apply, the plaintiffs’ claims in this case are brought under the Administrative Procedures Act, which explicitly waives sovereign immunity for claims seeking injunctive relief and provides that anyone “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action… is entitled to judicial review thereof.”

Third, and perhaps most importantly, the government failed to fully brief this argument before Judge Ali, and thus did not carry its burden of demonstrating a likelihood of success on the merits in opposing the TRO. As Judge Ali explained in his denial of the government’s last-ditch motion to stay:

Defendants’ arguments that injunctive relief under the APA runs into a sovereign immunity problem… are similarly undeveloped and an attempt to pretermit the preliminary injunction stage.

However, the Court has considered its jurisdiction at each stage of this case. Defendants’ undeveloped arguments on this point to date have not persuaded the Court that they would affect the Court’s prior likelihood of success analysis as it relates to the TRO. For example, Defendants’ instant motion does not meaningfully engage with the large body of precedent on this question.

The four dissenters suggest that the plaintiffs’ APA claim “more closely resembles a compensatory money judgment rather than an order for specific relief that might have been available in equity,” even though a temporary restraining order is one of the classic forms of relief available in equity.

But even if Justice Alito and his buddies were persuaded by the government’s underdeveloped and wrong sovereign immunity argument, that could not justify the dissent’s overheated rhetoric. Perhaps to compensate for his flimsy reasoning, Justice Alito took another cheap shot at Judge Ali, chiding him for having “failed to mention (much less reckon with)” two cases, one of which is cited only once in the government’s 66-page opposition, and the other of which is cited not at all.

“One might expect more care from a federal court before it so blithely discards ‘sovereign dignity,’” sneers Justice Alito, knowing full well that question was never before the lower court.

In the next few days, Judge Ali will almost certainly grant the preliminary injunction. The government will then appeal to the DC Circuit and the Supreme Court, where there are at least four justices willing to allow the Trump administration to seize congressionally allocated funds and stiff contractors on behalf of the government.

It’s not a great day. But perhaps we can take some comfort in the withering disappointment on Justice Barrett’s face on hearing the president tell the Chief Justice “Thank you again. Thank you again. I won’t forget.”