Opponents of  will take cheer from the Supreme Court’s refusal to intervene this week.  But there is less cause for celebration than they claim. The Justices’ decision to allow a trial judge’s order resuming spending to proceed is merely the first procedural skirmish in a larger constitutional battle that will return to the Court.  In the meantime, Trump’s campaign to restore executive energy will still play out with the home field advantage created by the Constitution itself.

In Department of State v. Aids Vaccine Advocacy Coalition, a D.C. federal trial judge issued an order forcing the administration to release about $2 billion to American-based humanitarian aid groups.  Upon taking office, Trump ordered a 90-day freeze of foreign aid to determine that the grants remained effective and legitimate, properly disbursed, and in U.S. foreign policy and national security interests. Judge Amir Ali, just confirmed by the Senate to the D.C. federal district court in President Joe Biden’s lame duck period, took an extraordinary measure: he issued a temporary restraining order requiring payment at least for work allegedly already completed by the aid groups.

When the federal appeals court could not figure out whether to stop Judge Ali, Chief Justice John Roberts temporarily put the order on hold last week. But this temporary halt proved exactly that – a 5-4 majority of the Court on Wednesday decided to allow Ali’s order to stand. Chief Justice John Roberts and Justice Amy Coney Barrett unexpectedly joined Justice Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, but wrote no opinion, which is often the case in these procedural skirmishes.



Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, issued a blistering dissent that argued that Judge Amir has no power to order the restraining order and, indeed, no authority to force the executive branch to spend the funds.

As he wrote: "Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise. I am stunned."

Justice Alito’s dissent expertly skewers Judge Amir’s effort to shield his shenanigans from higher review and his clear abuse of power in ordering the executive branch to resume payments.  The best defense for the votes of Chief Justice Roberts and Justice Barrett is that they want to see how the case plays out in the lower courts before choosing the right moment for Supreme Court intervention.

Eventually, however, the larger constitutional issue raised by the case will have to return to the . Trump is attempting to revive the president’s constitutional authority to refuse to spend funds in discrete categories.  The first and most obvious is that Congress cannot order the president to use money unconstitutionally.  Congress could not require the President to build bridges employing only white workers.

The second category at issue – on point with USAID – is that Congress cannot force presidents to spend funds that interfere with U.S. national security and foreign policy. The Constitution vests the nation’s leadership on those issues, as the courts have recognized, in the executive branch.

Congress cannot use its funding power to subvert the Constitution’s separation of powers; presidents have long refused to spend funds that do so. Thomas Jefferson, for example, refused to construct gunboats on the Mississippi River, as ordered by Congress, because they could have unnecessarily provoked Napoleon, with whom he was at that moment negotiating to purchase Louisiana.  Presidents Harry Truman and Dwight Eisenhower regularly refused to spend funds on unneeded weapons systems and military units.



The Constitution places on presidents alone the responsibility to "take Care that the Laws be faithfully executed."  Executing this duty may give the president the ability to achieve Congress’s spending directives while also saving money and adapting to new circumstances. Suppose Congress appropriated $100 million to build a difficult set of dams, but because of engineering advances and favorable labor market conditions, the executive branch can complete the project for $50 million and return the savings to the Treasury.

To force presidents to waste money and maintain inferior government operations deprives the American people of the very virtues of having a president in the first place. The founders created the presidency so that a single man could act with "decision, activity, secrecy and dispatch," as Hamilton wrote in Federalist No. 70. The new nation’s leaders had seen the failures wrought by committee government during the Revolutionary War and were eager to restore effective executive government.

In the wake of Watergate, Congress sought to end presidential ability to stop wasteful spending. In the Budget and Impoundment Control Act of 1974, Congress forbade presidents from fully spending all appropriations unless Congress approves. Congress rejected the decades of presidential practice from Jefferson through Nixon, nor did it recognize any exceptions for unconstitutional spending or interference with foreign policy and national security. While observers claim that a Supreme Court case, Train v. New York (1975), upheld the Act, it expressly did not. Train addressed a different law where Congress had ordered the EPA to spend specific amounts on water projects; the Court did not even mention the Impoundment Control Act. Although presidents from Ford through Biden have generally obeyed the Act, Congress’s ability to reduce the president’s impoundment authority remains an open constitutional question.



A third category is that presidents have some discretion to reduce spending for efficiency and effectiveness.  places on presidents alone the responsibility to see that the law is faithfully executed gives command over all executive branch personnel, from cabinet officials and heads of federal agencies on down.  The Supreme Court agreed as long ago as Myers v. United States in 1926 (authored by former President Chief Justice William Howard Taft) and as recently as Seila Law v. CFPB in 2020 (authored by Chief Justice John Roberts) that this authority gives the president the authority to fire Senate-confirmed officers, including those who, by statute, are given protection from removal.  One precedent, Humphrey’s Executor from 1935, still allows Congress to shield from presidential control the multi-member commissions, but the logic of the Roberts Court’s decisions sounds the death-knell for that lonely constitutional anomaly.

Trump’s effort to rein in USAID spending draws from this same wellspring of executive authority.  Even though the Constitution does not locate a power over foreign policy and national security, the fight over Washington’s Neutrality Proclamation forever established in our political order that the function is rooted in the grant of the executive power in the president. Nothing could more demand the qualities of speed, decision, and energy, in Hamilton’s words, than foreign policy and national security.  The last thing the Framers would have expected would be for disputes over our nation’s most foreign policy struggles to end up in the courts.

Trump’s opponents display their political weakness by rushing to the courts to resolve fights over spending and removal. The Constitution instead  as the branch best suited to respond to a president who has over-used his powers. Congress can cut off funds, refuse to confirm officers, decline to pass legislation, and ultimately impeach a Chief Executive who refuses to enforce the law or carry out legitimate spending programs. Because Democrats have lost the national elections, they cannot face that there is actually no constitutional conflict between Congress and the president.



A Republican Congress agrees with President Trump’s effort to downsize the federal government, reduce spending, and shrink the workforce. The Supreme Court would be wise to remember that the courts have little authority to interfere with the president’s control of the executive branch and his setting of foreign and .


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