Tracking Threats Through the Courts: Foreign Aid Funding Freeze
A brewing constitutional crisis! Not good!
For more on key issues moving through the courts, see our tracker.
What’s happening?
Earlier this week, Judge Amir Ali, a Biden appointee to the federal district court in Washington, D.C., gave the State Department 36 hours to comply with his order—which State has been dodging and defying for two weeks—to release the $1.5 billion in foreign aid that President Trump ordered frozen upon taking office.
Judge Ali’s compliance order was set to go into effect at 11:59 p.m. on Wednesday. The D.C. Circuit that evening refused to stay it, just minutes after Trump’s Justice Department asked the Supreme Court to intervene. But just hours before the deadline, Chief Justice John Roberts stepped in to extend the deadline at least until, well, today.
Now, we wait. Will the Supreme Court command Trump to comply with Judge Ali’s order? If so, would Trump defy the justices? Or will that prospect—and the blow it would strike to the Roberts Court’s continued ability to shape policy and law—induce the Court to roll over for Trump to avoid a major constitutional crisis?
What’s the Context?
Central to the Trump 2.0 agenda is the belief, contrary to centuries of precedent and broad, cross-ideological consensus, that presidents have the inherent constitutional authority to “impound”—or refuse to spend money—Congress has required the executive to disburse. The administration has repeatedly sought to circumvent court orders to unfreeze federal funds.
On Tuesday, Judge Loren AliKhan, another Biden appointee to D.C.’s federal bench, continued to excoriate the Trump administration for the Office of Management and Budget’s since-rescinded memo ordering across-the-board funding freezes. “Defendants either wanted to pause up to $3 trillion in federal spending practically overnight, or they expected each federal agency to review every single one of its grants, loans, and funds for compliance in less than twenty-four hours,” Judge AliKhan wrote in her preliminary injunction order. “The breadth of that command is almost unfathomable,” she continued, concluding that the administration’s “actions were irrational, imprudent, and precipitated a nationwide crisis.”
Judge John McConnell, an Obama appointee to Rhode Island’s federal bench, is expected in the coming days to reach the same conclusion in a multistate lawsuit against the OMB’s funding freeze, which Judge McConnell had initially blocked late last month (Judge AliKhan soon followed suit with her temporary restraining order). Judge McConnell subsequently called out the Trump administration for defying his TRO. Elon Musk subsequently called for the judge’s impeachment—a call a Republican congressman was all too eager to heed.
Musk has since extended his ire to Judge Ali, endorsing another Republican congressman’s articles of impeachment against the judge and calling him a victim of the “woke mind virus.”
Name-calling and impeachment threats haven’t yet—and likely won’t ever—intimidate Judges McConnell and Ali into doing Trump’s bidding from the bench, but other judges may not have the same moral fortitude. The actions and statements of the administration make it clear to anyone watching, including the Roberts Court, that a full-blown constitutional crisis is quickly approaching, to the extent it is not already here.
A Constitutional Crisis of the Roberts’ Court’s Making
Alexander Hamilton wrote in Federalist 78 that the judiciary is “the least dangerous branch” because it “has no influence over either the sword or the purse” and possesses “neither FORCE nor WILL, but merely judgment.” Central to the judiciary’s ability to serve as a guardrail against presidential tyranny, by extension, is that the people have faith in its independence and legitimacy. But today—following years of activist, precedent-shredding rulings and historic judicial corruption scandals by the Roberts majority—by historic margins, they don’t. And in their unprecedented creation of Presidential immunity from criminal prosecution in last term’s Trump v. United States, the Roberts majority established a “maximalist theory of executive power” that has given Trump every reason to believe he can rule as a king.
It should come as no surprise—to Roberts or anyone else—that Trump has accepted their invitation. In just the past two weeks, Trump declared himself “king,” that “He who saves his Country does not violate any Law,” and that “we are the federal law” when threatening to cut off federal funding to Maine if the state defies his anti-transgender policies.
That does not sound like a president who would be willing to obey the Supreme Court on a matter he really cared about, let alone let them yield executive power to the judiciary to enforce judgments against him and his administration.
What’s more, this week three of Trump’s top Justice Department nominees each spent their confirmation hearings dodging the Senate Judiciary Committee’s questions about whether the administration would comply with court orders.
And several weeks back, Vice President J.D. Vance, in response to a court order against Elon Musk’s DOGE team, wrote that “Judges aren’t allowed to control the executive’s legitimate power.” That assertion, of course, has no limits if only the executive can determine what’s legitimate. As Vance put it plainly in a 2021 podcast: “when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’”
Where’s This Headed?
All of this will surely be on the justices’ minds should they be squarely presented with deciding the actual legality of the funding freezes (beyond just the procedural issues currently on their hands).
After all, whether the Court finds Judge Ali’s TRO properly appealable, the district judge has strongly hinted that his preliminary injunction order in the coming weeks will tackle whether a foreign aid funding freeze is an unconstitutional impoundment. That’s something that Chief Justice Roberts said was an open question in his memo advising against domestic impoundments when he served in the Reagan Administration Justice Department, as did his predecessor Chief Justice Rehnquist while serving in the Nixon administration.
If Roberts is now looking to shy away from a constitutional confrontation with a regime that’s barrelling toward outright judicial defiance, then perhaps he can gather his supermajority to say foreign aid freezes are fine while leaving open the broader impoundment question for another day. But Judge Ali’s order, likely in anticipation of this effort, cites the Chief Justice’s statement in a 2015 dissent that “[t]he Constitution allocates some foreign policy powers to the Executive, grants some to the Legislature, and enjoins the President to ‘take Care that the Laws be faithfully executed.’” Indeed, Chief Justice Roberts began that dissent by expressing shock and dismay that the majority had, for the first time in Supreme Court history, “accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”
And whatever the Court may say about foreign aid, the challenges to the OMB memo’s funding freezes may soon land on the justices’ doorstep, presenting what Chief Justice Roberts in 1985 called the kinds of “normal spending questions” in which “the President has no independent constitutional authority to impound funds.” And even if the justices end up dodging those cases by accepting the Trump Justice Department’s argument that the case is moot because the specific freeze memo was nominally rescinded, the Court may still have to reckon with Pennsylvania’s challenge to Trump’s Executive Order directing his administration to freeze funds appropriated under Infrastructure Investment and Jobs Act and the Inflation Reduction Act.
Why does it matter?
Let’s be clear: we’re in this position now because of Chief Justice Roberts. The Roberts Court began the destruction of the Voting Rights Act in 2013 with Shelby County. It handed down the Citizens United decision that created the conditions allowing Musk to purchase his proximity to the presidency. And Chief Justice Roberts engineered the decision declaring Trump immune from criminal prosecution for trying to overturn the 2020 election, upending our system of checks and balances.
This is not a Court that wants to save our democracy. It’s a Court that made specific decisions to pursue a partisan agenda and perpetuate its political faction’s power. And when they inevitably broke it, we all, unfortunately, had to buy it.
These decisions have allowed the Trump administration to disregard our system of checks and balances, and act with impunity—including with senseless funding cuts and arbitrary firings. That means that many nonpartisan workers have either lost their jobs—through no fault of their own—or are at risk of losing their jobs. That also means that vital programs have seen their funding completely stall, threatening services that benefit Americans across the country—like cuts to NIH funding that threaten cancer research or cuts to FEMA that put the country at risk as natural disasters become year-round issues.
But there are ways to fight back, and we must. We can take a lesson from voters turning out at town halls across the country demanding their representatives in Congress stand up for the people and not simply hand over our power to a would-be autocrat. We can harness the anger and pain of those left sick and hungry from Trump’s senseless funding cuts or jobless over DOGE’s arbitrary firings—and channel that energy into organizing.
What we’re reading this week:
The Supreme Court Helped Trump Win by Jenny Hunter for People’s Parity Project
Why the Supreme Court could be key to Trump’s attempted destruction of government by Paul Waldman for MSNBC
Democrats Need a Battle Plan—And A War Room by Murshed Zaheed for Off Message
How Many Federal Workers Have Lost Their Jobs? by Will Peischel for New York Magazine
Impoundment: An Illegal Power Grab That Will Harm People by Will Royce for Revolving Door Project