The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
SCOTUS Denies Trump Administration Application to Stay District Court Order Blocking Pause of USAID Payments; Certiorari Sure to Follow
A pre-opinion release order divides the justices 5-4, but this may not preview the split on the merits.
This morning, the Supreme Court denied the Trump Administration's application for a stay of a district court's temporary restraining order blocking the Administration's effort to pause the disbursement of funds from the U.S. Agency for International Development. The unsigned order in Department of State v. AIDS Vaccine Advocacy Coalition directs the district court 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." This likely means that the approximately $2 billion in funds "owed for work already completed" before entry of the court's TRO must be paid out.
While the order is unsigned, it is clear that it was joined by the Chief Justice and the four female justices (Sotomayor, Kagan, Barrett and Jackson). Justice Alito dissented, joined by Justices Thomas, Gorsuch, and Kavanaugh. The dissent begins:
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 argues, among other things, that "the District Court's enforcement order should be construed as an appealable preliminary injunction, not a mere TRO." It further argues that the Trump Administration is likely to prevail on the merits on grounds of federal sovereign immunity (because the plaintiffs are seeking to force the disbursement of funds from the federal treasury). The dissenters seem unconvinced that the Administrative Procedure Act waives sovereign immunity for these purposes. This does not mean those who believe they are owed money by USAID have no remedy, just that they have to pursue such claims in the Court of Federal Claims instead of a federal district court.
The brief dissent concludes:
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.
This is far from the end of the case. Indeed, since four justices dissented here, it is abundantly clear that there will be four votes for certiorari once the Department of Justice files a petition. In other words, stay tuned.
