Lawmakers have been waiting all year for the Supreme Court to save them from President Donald Trump’s unprecedented moves to suspend funding Congress already approved. But they might not get closure anytime soon.
Trump began freezing federal cash the day he was sworn into a second term as president. Seven months later, the courts are littered with legal challenges to his administration’s abrupt, massive and often indiscriminate cuts to spending, contracts and personnel. None of these lawsuits, however, have yet risen to the Supreme Court in a way that would give the justices the necessary opening to settle longstanding disagreements about Congress’ control of the federal pursestrings — and whether the administration’s actions violate the law.
In recent weeks, several of the leading cases that have a shot at reaching the Supreme Court were set back due to two technical tripwires: Who can bring the lawsuits and what courts have to hear them first.
That means the high court’s justices are unlikely to wade into the substance of the issue, if they choose to at all, until at least next year. In the meantime, Democrats and Republicans on Capitol Hill will have to navigate tense funding negotiations to avoid a government shutdown on Oct. 1 and beyond without any assurances that Trump will be forced to spend the money as stipulated.
“Whatever your prediction is about when we get a full-year appropriation … we won’t have heard from the Supreme Court — in any way that anyone can count on — when that is done,” said Georgetown University law professor David Super.
For a few days last week, one prominent case challenging Trump’s withholding of funding for the U.S. Agency for International Development seemed like it might get an emergency decision by the Supreme Court in short order. That case could have sent strong signals about how the justices view the broader question of impoundment, which refers to the president’s act of withholding congressionally appropriated cash.
But on Friday, the Trump administration dropped its request for the justices to rule in the case after a lower court effectively sent the issue back before another judge.
Meanwhile, Trump added new urgency on Friday for the high court to weigh in on impoundment of foreign aid funding: He advanced his assault on Congress’ funding power by declaring a “pocket rescission,” the seldom-used maneuver to cancel federal dollars in the final days of the fiscal year without requiring an up-or-down vote.
Many lawmakers and Congress’ top watchdog argue the gambit is illegal. But the courts won’t necessarily see the “pocket rescissions” tactic championed by White House budget director Russ Vought as meaningfully different from the other actions the Trump administration has taken this year, according to Super.
“It’s a cute term that Mr. Vought came up with. But it is essentially just sitting on the money, and that’s what they’ve been doing now,” he said.
Still, Trump’s latest attempt to assert more control over federal spending has made lawmakers of both parties desperate for certainty, even as they’re jittery over the prospect that the justices could side with Trump and erode their funding power.
After all, the court has repeatedly ruled in the president’s favor of late, including allowing the Trump administration to cut off health research grants, proceed with mass layoffs at the Education Department and implement sweeping elements of his mass deportation agenda.
“I’m worried,” Sen. Jeff Merkley (D-Ore.), a senior member of the Senate Appropriations Committee, said in an interview.
“They’re inventing what they thought was good policy,” Merkley said of the Supreme Court justices. “That’s not their role. And so they’re violating their oath of office through the Constitution. So we’re in deep trouble when this comes to the Supreme Court.”
To some lawmakers, the Supreme Court’s eventual, inevitable role in resolving these interbranch fights could be a clarifying inflection point for the nation.
“My prediction is: When we look back on this administration, there’ll be more Supreme Court decisions defining separation of powers than in the 250-year history of the country,” said Sen. Rand Paul in an interview.
The Kentucky Republican, who chairs the Homeland Security and Government Affairs Committee in charge of vetting Trump’s nominees to top budget posts, told a White House official earlier this year that he doesn’t think the president “can impound direct funds indefinitely.”
“It’s a reasonable question to ask. And it’s never been all the way to the Supreme Court,” Paul said. “And of course, everybody has to adhere to what the final decision will be.”
But even then, the Supreme Court could skirt the overarching argument many lawmakers are hoping the justices settle.
“The biggest question for the next few months is whether the court has the appetite to squarely take on the basic issue — the fundamental issue — which is the administration’s broad claim that it can refuse to spend appropriated funds for policy reasons,” said Gregg Nunziata, a conservative lawyer who served as counsel for Senate Republicans and now heads the Society for the Rule of Law.
Already, the Supreme Court has dealt a major setback to lawsuits over funding the Trump administration has withheld for grants and contracts. Late last month, the justices signaled such cases need to start over in the slow-moving Court of Federal Claims, which has jurisdiction over cases involving financial damages and breached contracts.
And the USAID case — in which humanitarian groups are challenging Trump’s decision to withhold billions of congressionally appropriated dollars — now faces several new twists in its path to Supreme Court consideration too.
On Friday, a White House official said the Trump administration sees revoking USAID funding as its strongest case for canceling federal cash at the end of the fiscal year, arguing, “there’s nothing that we can do within these accounts, because of the way they’re written, to shift them to things that the president would support in the foreign aid space.”
The administration “wanted to make the case as clean as we possibly could, as we navigate the different critics that we know would arise,” the official added.
Last month, in the USAID case, a panel of the D.C. Circuit Court of Appeals ruled that only Congress’ top watchdog, the Government Accountability Office, can sue the administration over breaking impoundment law. That ruling has derailed the effort by humanitarian groups to sue directly.
University of Michigan administrative law professor Nicholas Bagley described the courts as taking a “lawyerly, careful, minimalist” approach in their decisions on Trump’s funding moves. “And the vice is the courts don’t appear to be registering the full depth of the concern about the erosion of the appropriations power,” he added.
But the fact that those lower-court issues are hindering lawsuits from making it to the Supreme Court isn’t necessarily a failure of the judicial system, argues Zachary Price, a law professor at the University of California College of the Law, San Francisco.
“It’s just a kind of mismatch between litigation timelines and the way the appropriations cycle works,” Price explained. “It’s a process that works a lot better when it’s a matter of push and pull between the branches.”
Those so far reluctant to exert real pressure on the administration to back down from its funding moves are congressional Republicans. GOP lawmakers could take steps like barring funding for White House operations if the Trump administration doesn’t spend federal cash as lawmakers mandate or reject Trump’s proposals like the $9 billion rescissions package they passed earlier this summer.
But most Republicans don’t want to appear antagonistic of the president, and they’re hoping instead that the legal system will settle a messy fight on their behalf.
“Is Congress determined to protect its own power of the purse or not?” said Philip Wallach, who studies the separation of powers at the right-leaning American Enterprise Institute. “Congress has a very bad habit of relying on the courts to rule and make everything clear, and fix everything for them, so that they don’t have to do it.”
