The Trump administration is asking the Supreme Court to allow the president to withhold billions of dollars in congressionally appropriated foreign aid before the fiscal year ends on Sept. 30.
The Justice Department filed an emergency appeal with the high court Tuesday, asking the justices to pause a federal district judge’s order that requires the administration to come up with a plan to lay out the money by the deadline next month.
Solicitor General John Sauer argued in the new filing that groups representing aid contractors have no legal basis to force such spending and that it’s up to Congress to challenge executive branch spending shortfalls under a 1974 law, the Impoundment Control Act.
“Congress did not upset the delicate interbranch balance by allowing for unlimited, unconstrained private suits,” Sauer wrote. “Any lingering dispute about the proper disposition of funds that the President seeks to rescind shortly before they expire should be left to the political branches, not effectively prejudged by the district court.”
While Sauer’s submission is framed as an argument to defer to Congress, he also makes clear that the administration believes Trump has authority to engage in so-called pocket recissions that would occur so late in the fiscal year that it would be impractical for Congress to reverse them.
It’s the latest escalation in Trump’s effort to wrest the power of the purse from Congress, one that has alarmed lower courts and rankled even some Republicans in Congress.
Trump and his budget architect Russell Vought have long sought to challenge the 1974 law, which establishes strict procedures when the president intends to cancel spending authorized by Congress. Though the president can briefly pause some spending, he must get congressional permission to cancel it altogether through a process known as “rescission.”
Earlier this month, a three-judge panel of the D.C. Circuit Court of Appeals ruled, 2-1, that only Congress’ comptroller general — the leader of the Government Accountability Office — has the power to challenge allegedly unlawful impoundments by the president. Groups that rely on foreign aid funding and claim the right to sue over withheld grants are asking the full bench of the D.C. Circuit to reverse that conclusion, but the full court has not yet acted.
For now, an earlier order from U.S. District Judge Amir Ali in favor of the aid groups remains in effect. Ali, a Biden appointee, mandated formal obligation of the funds by the end of September. That order is presently due to be set aside unless the full D.C. Circuit steps in — but the Trump administration seems eager to get the issue in front of the Supreme Court quickly.
Sauer asked the justices to rule by Sept. 2 or to put in place a temporary order that the government need not comply with Ali’s directive.
An official with one of the groups challenging the funding holdbacks, the AIDS Vaccine Advocacy Coalition, said it wasn’t surprising that the administration is rushing the dispute to the high court.
“Time and again, this administration has shown their disdain for foreign assistance and a disregard for people’s lives in the United States and around the world. But even more broadly and dangerously, this administration’s actions further erodes Congress’s role and responsibility as an equal branch of government,” the coalition’s executive director, Mitchell Warren, said in a statement. “The question being put to SCOTUS is whether they will be complicit in further eroding the constitutional commitment to checks and balance.”
Carmen Paun contributed to this report.
