The Trump administration asked the Supreme Court on Tuesday to intervene before it is forced to pay out billions in foreign aid funds.
The D.C. Circuit Court of Appeals panel issued a 2-1 decision in August that an injunction requiring the administration to release the funds should be blocked. The injunction remains in effect because the full court has not issued a mandate to enforce the ruling.
“The funds subject to the injunction comprise tens of billions of dollars, some $12 billion of which would have to be spent before those appropriations expire on September 30,” Solicitor General John Sauer wrote in the emergency application.
The government is coming to the Supreme Court because the full D.C. Circuit’s inaction has left it “subject to an injunction that the panel held to be deeply erroneous,” Sauer wrote.
Nonprofit groups whose grants were terminated following President Donald Trump’s day-one executive order pausing foreign aid funding initially sued over the freeze in February. The D.C. Circuit panel found Aug. 13 that only Congress, through the Government Accountability Office (GAO), can bring lawsuits challenging the administration’s funding decisions.
The administration previously came to the Supreme Court in February when U.S. District Judge Amir Ali issued an order requiring the government to pay $2 billion in foreign aid within 36 hours. The majority ultimately declined 5-4 to block Ali’s order, over strong objections from Justice Samuel Alito.
“Since the Founding, Congress and the President have occasionally clashed over the use of appropriated funds,” the Trump administration’s application continues. “Congress, with the power of the purse, appropriates money for specific programs; the President, vested with exclusive authority to enforce the laws, has often disagreed about whether and how much of those funds should be spent.”
Ali, a Biden appointee, declined on Monday to halt his injunction.
“It is not this Court’s role to second-guess the court of appeals, whether it sits as a panel or as a full court,” Ali wrote Monday. “The Court’s latest guidance from the Circuit comes from the latter, which directed five days ago that because the mandate has not yet issued, ‘the preliminary injunction that requires the government to obligate the appropriated funds remains in effect.’”
If the Supreme Court does not intervene by Sept. 2, the administration will have to “take extensive preliminary steps that themselves inflict irreparable harm on the United States—for instance, negotiating with foreign countries about the scope and conditions of potential assistance programs,” Sauer wrote.
“Even if the government were to prevail, backtracking on those commitments and proposing rescissions after September 2 would inflict irreparable diplomatic costs and generate needless interbranch friction,” he continued.
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