If you thought the Supreme Court would act to halt the propensity of District Court Judges to overstep their constitutional boundaries by substituting their own policy and political judgments for those of the Executive Branch — as I did — you would be wrong.In a ruling that left Justice Alito “stunned,” Chief Justice Roberts and Justice Barrett sided with the three liberals.We covered the case before – Supreme Court Stays District Court Order That U.S. Pay $2 Billion To Foreign Aid Contractors By Midnight:
A well-organized and financed effort that was planned for several months to paralyze the executive branch through lawfare has unfolded in several dozen lawsuits since the Inauguration. Unfortnately, some — but not all — district court judges have overstepped their constitutional boundaries to micromanage and second-guess policy and political decisions. There is no better example than AIDS Vaccine Advocacy Coalition v. U.S. Dept. of State, where they obtained a crazy (I don’t use that term lightly) order that DOS pay $2 billion in invoices by midnight tonight….When most of the day had passed without the appeals court ruling, the Trump administration filed an emergency application, repeating many of the same arguments, with the Supreme Court.
The government cannot function—and the President cannot discharge his Article II responsibilities over foreign affairs—if a district court can appoint itself the claims-processor for the federal government and second-guess the Executive Branch’s determinations on pain of contempt proceedings.
The government decision being challenged was a pause in payment pending a review as to whether the payments were owed and the work had actually been performed. The District Court did not allow that review and ordered everything to be paid — even for services not rendered or for fraud, if that turned out to be the case — with the government left with the empty remedy of trying to recoup payment. Even contractors who were not parties to the case had to be paid, for contracts the court never identified – just a sweeping pay it all order. This represents a policy determination. If contractors believed they were owed money, there is an avenue to assert claims for payment, but not in the District Court.
I compared the emerging District Court power expansion to what has taken place in Israel:
In our Morning Insurrection newsletter (subscribe here), I commented this morning:
“I was reading an excellent article at JNS about how Judges in Israel have taken almost complete control of political and policy decision making through vague concepts as to what is in the public interest. Unfortunately, it reminded me of what is happening in many U.S. District Courts where vague and broad concepts under the Administrative Procedures Act have been used in an attempt to substitute the political and policy judgments of judges for those of the executive branch. In Israel and here, the result of judicial usurpation of political and policy decisions will result in a collapse of faith in the judiciary.”
When Chief Justice Roberts issued a stay at 10 p.m. that night, I was hopeful it was a signal that the so-called conservative 6-3 majority would rein in the District Courts. But it turns out to have been wishful thinking.
In an Order issued this morning, the court – with Alito, Thomas, Gorsuch, and Kavanaugh dissenting – dismissed the request to vacate the District Court 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. On February 25, the District Court ordered the Government to issue payments for a portion of the paused disbursements—those owed for work already completed before the issuance of the District Court’s temporary restraining order—by 11:59 p.m. on February 26. Several hours before that deadline, the Government filed this application to vacate the District Court’s February 25 order and requested an immediate administrative stay. THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court. The application is denied. Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should 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. The order heretofore entered by THE CHIEF JUSTICE is vacated.
Justice Alito, joined by Thomas, Gorsuch, and Kavanaugh, issued a strong dissent:
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….Unfortunately, a majority has now undone that stay. As a result, the Government must apparently pay the $2 billion posthaste—not because the law requires it, but simply because a District Judge so ordered. As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the Court fails to carry out that responsibility….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. A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the Court does today, so I must respectfully dissent.
There is a constitutional crisis, but it’s not as portrayed in the media. I had too much faith in SCOTUS doing the right thing. On February 15, 2025, I clung to that hope. The Only “Constitutional Crisis” is That Democrats Lost, Now They’re Trying To Govern from the Courtroom:
This was the case in which SCOTUS could have put an end to the abuses. It refused. So we are in for an extended period of crisis.
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