Welcome to this week’s Weekly Constitutional, where a judgment or other formal document is used as a basis for a discussion of law and policy. This week’s document is the United States Supreme Court’s 5-4 decision this week to lift a stay on a federal court’s order.
Some legal decisions can be both hugely significant and not that significant: it depends on what is being looked at. The decision of United States Supreme Court this week to lift a stay on a federal court order is one such case.
The detail of the matter indicates that the practical effect of the decision may be minimal. But an overall view of the context of the decision suggests it may be momentous.
The case is about the federal government paying out disbursements of foreign development funds. Those bringing the legal claim say the president of the United States is seeking to “withhold billions of dollars in congressionally appropriated foreign-assistance funding”. In particular the complainants aver that the Consolidated Appropriations Act of 2024 “directs funding to [the United States Agency for International Development, or USAID] for global health programs, development assistance, disaster assistance, and initiatives to promote and strengthen democracy abroad, among other purposes.”
In essence, the claimants say that Congress has passed a law and directed that federal funds be used in a certain way, and it is not open to the president to frustrate this, either by executive order or otherwise. This is notwithstanding that the president has (purported to) “pause” such funding under this executive order.
The federal court in the District of Columbia granted an interim injunction—a so-called temporary restraining order or TRO—preventing the federal government from pausing such payments. Interestingly, the federal government has not (yet) appealed that TRO. The same court then granted a further TRO mandating the federal government to issue payments for work already completed. This is the TRO that has been appealed.
One would think that a legal situation could not be any more plain. Congress has passed a statute authorising the payments, and the payments are already due and owing. Of course, this case is still at a preliminary stage and there has not yet been a full hearing. These TROs are to hold the ring and prevent needless prejudice until the matter has been heard and decided at trial.
Even taking account that they are an interim measure, it is difficult to fault the court orders. These are payments authorised for payments of debts already incurred. Yes, the judge set a tight deadline of 36 hours and, yes, the amount was considerable—it is said to be about $2bn—but in the circumstances that was not obviously unreasonable. The monies are in place, and they would have already been paid out but for the Executive Order.
The federal government, however, found the TRO obliging these payments intolerable. Such an order was simply not acceptable. The government said it was immune from such an order and that it was unreasonable. It appealed to a federal appeals court. The federal appeals court sided with the court below. The government then appealed to the Supreme Court.
At first it appeared the Supreme Court may have been on the side of the government: the Chief Justice John Roberts granted a stay on the TRO pending a decision of the full court. It was the first time there had been an active intervention by the Supreme Court in any of the litigation prompted by President Trump’s flurry of executive orders.
But the government was soon to be disappointed. On 5th March the Supreme Court decided by five votes to four to lift the stay. The application by the government to vacate the TRO outright was denied.
Given that nominally the Supreme Court has six “conservative” justices to three “liberals”, this was for many a shock. Many assumed that the majority would nod along with whatever the federal government wants to get away with.
It was not, however, an unmixed victory for those supporting the federal court. The majority of the Supreme Court—perhaps in a compromise between the five justices in that majority–said that the deadline set by the federal court was unfeasible. The Supreme Court majority decision is careful to say, “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 fulfil to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.”
The majority thereby had no inherent problem with the mandatory nature of the TRO under challenge, but they thought that the federal court was being too hasty. Of course, such wording may, in turn, allow the government some wriggle-room to be tardy when a new, reframed TRO is granted. But once the deadlines in the renewed TRO are feasible, then the government would be obliged to comply.
So much for the detail of the case: the federal government has managed to gain more time to comply with an order to pay monies already appropriated by Congress for debts already incurred. If the case is described in this way, it does not seem that significant.
But there is more. The published Supreme Court decision was not limited to the one paragraph setting out the position of the majority. It also contained an eight-page dissent of the four-judge minority penned by Justice Samuel Alito.
Alito said he was “stunned” by the majority decision. Of course, this is an insincere statement: an experienced judge is never really surprised by what their judicial colleagues decide. They may be disappointed, but they are not actually astonished. The “stunned” remark can be regarded as mere judicial rhetoric.
But the substance of the dissent is worrying. Alito says that the government was likely to be able to rely on the doctrine of sovereign immunity in a legal challenge to its refusal to pay out monies appropriated by Congress for debts incurred to third parties. Alito also contends that there would be a risk of the payments being irrecoverable if fraud is ever found, even though the amounts are authorised and due.
Alito even admits in a passage tucked away at the end of his dissent that the claimants “raise serious concerns about nonpayment for completed work” and that the federal courts do have “tools to address [the government’s] supposed nonfeasance”. Not even Alito and the minority can affect that there is not a potential issue here.
The true significance of the decision is in part that despite the stark and strident eight-page dissent, the Chief Justice and another “conservative” judge were not with the dissenters. John Roberts and Amy Coney Barrett were not “stunned”—and they were not up to pretending otherwise.
This means that the federal government cannot take for granted that the majority of the Supreme Court will automatically endorse whatever the federal government does.
Roberts and Barrett are undeniably conservative in their jurisprudence—both voted to overturn Roe v Wade and both supported a general immunity from prosecution for the president (though Barrett did not join all of the opinion of the majority in the latter).
But in their judgments in other cases Roberts and Barrett generally tend to reason forwards from their conservative premises, rather than reason backwards from what (partisan) result they want the judgment to achieve—which is the impression given by many of the judgments of the other four “conservatives”. This means Roberts and Barrett can be unpredictable to onlookers.
And this brings us to the other reason why the judgment is significant. That even in what seems an open-and-shut case—and where an adjustment is made for what was perhaps an over-tight deadline—four members of the Supreme Court were still against a federal court order obliging the federal government to pay out monies expressly authorised by Congress and owing to third parties.
Even when the merits of the argument are such that fellow “conservative” judges sided with the complainants, the four other judges could not move. It is almost as if they have been caught in the headlights of Trump and Elon Musk’s federal juggernaut. Perhaps they have indeed been stunned.
