Allison Gill (38:24)
I'm glad Ed Martin isn't in charge of this. I'm glad it's Schwab. That's good news. That's good to hear. I learned something new today. Yay. All right, everybody, everybody, we've got some listener submitted good news. But first we're going to go over that Steve Vladek blog about what the Supreme Court did today and what it could mean for future rulings that are similar. But first, we have to take a quick break, so everybody stick around. We'll be right back. Hey, everybody, welcome back. I wanted to do more of a breakdown on what the Supreme Court ruled today as far as putting the money back on to pay the USAID bills. And whenever I need a good breakdown so that I can understand what's going on, what the impact will be and what it means for future rulings, I always, always, always read one first by Steve Vladic on his substack. It says, welcome back to One first, an increasingly frequent newsletter that aims to make the U.S. supreme Court more accessible to all of us. Given the widespread confusion arising from The Supreme Court's 54 ruling this morning in the foreign aid spending cases, I thought it would be worth an unscheduled issue that took a stab at summarizing what the court did or what they appear to have done, what it didn't do, and what happens next. I'm writing this from an airport gate waiting area, so please forgive me if it's a little less organized than the typical post he posts here. The decision from the Supreme Court, which says on February 13th, United States District Court for District of Columbia entered a temporary restraining order enjoining the government from enforcing directives pausing disbursements of foreign development assistance funds. The present application does not challenge the government's obligation to follow that order. Order on February 25, the district court ordered the government to issue payments for a portion of the pause disbursements, those owed for work already completed before the issuance of the district court's temporary restraining order. And they ordered that by 11:59pm on February 26th. Several hours before that deadline, the government filed its application to vacate the district court's Feb. 25 order and requested an immediate administrative stay. The Chief justice entered an administrative stay shortly before the 11:59pm deadline and subsequently referred the application to the court. The application is denied. 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 fulfill to ensure compliance with the temporary Restraining Order. With due regard for the feasibility of any compliance timelines, the order hereto after entered by the Chief justice, is vacated. All right, so first let's talk about the background. Steve Vladic says if you're not familiar with the background of these cases, I'd encourage you to read my post from last Thursday, which went into at least some detail on how these cases got to the Supreme Court, the administrative stay that Chief Justice Roberts entered last Wednesday, and the very different ways of understanding the Chief's intervention. I should concede that even that post barely scratched the surface of how intricate and complicated this litigation is. These cases aren't just about the merits of whether the executive branch can unilaterally stop spending these funds funds. There's a bunch of messy procedural stuff, too, at least some of which has been complicated by the government's shifting litigation positions. I like how he says that very nicely. For present purposes, the key, in my view, is understanding that there are two different sets of rulings here. There's Judge Ali's underlying temporary restraining order, which remains in effect and which the government has neither tried to appeal nor seek emergency relief from. And then there's Judge Ali's more specific order, which purported to enforce the restraining order by obliging the government to pay somewhere between $1.5 and $2 billion of obligated foreign aid funds by last Wednesday night, February 26th. It was that order that the government tried to appeal and from which it sought emergency relief, first in the D.C. circuit and then in the Supreme Court. By issuing an administrative stay last Wednesday night, Chief Justice Roberts temporarily absolved the government of its obligation to comply with that order, but not with the underlying tro, which generally requires the government to spend money Congress has appropriated for foreign aid funding next Wednesday morning's order. Against that backdrop, the court's Wednesday morning ruling is more than a little confusing. Let's start with what's clear. A 54 majority, with Chief Justice Roberts and Justice Barrett joining the Democratic appointees, denied the government's application to vacate Judge Ali's enforcement order order. There's only one meaningful sentence in the court's ruling, and it's maddeningly opaque. That's the Given this deadline and 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 fulfill to ensure compliance with a temporary restraining order with due regard for the feasibility of any compliance timelines. That's the same sentence I thought was mushy, she this sentence, Steve Vladik says, or perhaps a broader, earlier draft, provoked a fiery and more than a little hypocritical eight page dissent from Justice Alito, joined in full by Thomas, Gorsuch and Kavanaugh. But before getting to the dissent, let me try to read a couple of tea leaves out of this cryptic but important message. First, I think it's meaningful that the majority denied the government's application rather than dismissing it as moving in English, that is the majority signaling that the government likely still must comply with the Pay Now Order, albeit not on the original timeline. If the majority thought that the Pay now order was no longer live because the deadline had come and gone, then the proper disposition would have been to dismiss the application as moot, not to deny it. Indeed, although there are good reasons to not rely upon dissents to figure out what the majority held held, Justice Alito's dissent seems to reinforce that reading. This may seem like a very thin read, but it is a distinction I can't imagine was lost on the justices. The majority, and apparently the dissent, seem to agree that the government remains under not just the general obligation of the temporary restraining order, but the specific obligation of the Pay now order. Second, the clause about the district court clarifying the obligations the government must fulfill to comply with the temporary restraining order strikes me as an invitation to Judge Ali to do exactly that, to issue a more specific order, one that identifies the particular spending commitments he believes the government must honor to comply with the TRO, and 2 gives the government at least a little more than 48 hours to do so. Yes, the underlying temporary restraining order has now been in place for 23 days, which should have been enough time already. More on this below as well. But the upshot is, even if the Trump administration doesn't have to pay the money immediately, it will have to do so very soon. That's small solace to the organizations and people who've already had their lives upended by the spending freeze, but it's a bigger loss for the Trump administration than the text may suggest. Third, the timing of the ruling is striking. The court handed down the order right at 9:00am this morning, morning, less than 12 hours after the end of President Trump's Tuesday night address to Congress. This is exactly what I was talking about. It's just about impossible to imagine the ruling was still being finalized overnight, or that the chief justice was somehow influenced by his awkward moment with Trump. But if not, then there appears to have been at least some choice on the court's part to hand down the ruling after the president's speech and not before, for example, at the close of business yesterday, perhaps to avoid the specter of Trump attacking the justices while several of them were in the audience. I've written before about the specter, the court's timings of its rulings. This at least seems like it might be another example. And I have to take a break here from reading Steve Vladek to tell you that the reason that I was thought about the timing of this is because of what I have read by Steve Vladek in the past and its links. You can read what I've read in this particular substack post now. Fourth, here's the 54 lineup again. Back in January, I wrote about this particular 54 alignment with Chief Justice Roberts and Justice Barrett joining the three Democratic appointees. It's starting to show up in cases in which the chief justice elusively but not illusory institutional commitments and Justice Barrett's emerging independence are separating them from the other Republican appointees. For a host of reasons that I suspect are obvious, we may see more such cases sooner rather than later. On one hand, it's a bit alarming that Justice Kavanaugh joined the dissent, about which more in a moment. On the other hand, for those hoping that the court is going to be a bulwark against the mounting abuses of the Trump administration, it's a cautiously optimistic sign that there may well be at least five votes for that broader but yet to be proven proposition. All right, next up, the dissent. Justice Alito's dissent goes on quite a journey. In eight pages, as is unfortunately often the case with respect to his dissents from emergency applications, it combines a remarkable amount of hypocrisy with statements that are either materially incorrect or at the very least misleading. On the page three of the ruling, page two of the dissent, for example, Alito writes that, quote, the government must apparently pay the $2 billion post haste, not because the law requires it, but simply because a district judge so ordered. Of course, this completely misstates both the theory of the plaintiff's lawsuit and the gravelman of Judge Ali's order. The whole point is that the law does require it, that Congress has mandated the spending, and that's the contractual obligations have to be fulfilled. Indeed, Judge Ali's Pay now order is about work already completed for which the money is already due. If there's an authority for the proposition that the government is not legally obligated to pay its bills, Alito doesn't cite it. Yes, there may be separate questions about the court's power to compel the government. More on that shortly. But that's not the same thing as whether the law requires it. The law requires the government to pay its bills. Do the dissenters genuinely believe the answer is no? Alito also makes much of the argument that sovereign immunity somehow bars the claims against the government government. But the Supreme Court has already held that relief under the Administrative Procedure act can run to whether the government is obliged to pay expenditures to which the recipients are legally entitled. Alito asserts that actually ordering the government to pay those expenditures is something else entirely. Suffice to say, I think that's slicing the baloney pretty thin. Again, I think his argument would have more force if Judge Ali's pay now order was about funds for which the administrative processes haven't fully run. But here they have. And so it's just a question of whether the federal courts have the power to force the government to enforce the law. In that respect, contrast Alito's analysis here with his dissenting opinion in USV Texas, in which he would have upheld an injunction by a single judge shop district judge that effectively dictated to the executive branch what its immigration enforcement priorities must be. In explaining why the Biden administration should lose, he wrote, nothing in our precedence even remotely supports this grossly inflated conception of executive power, which seriously infringes the legislative powers that the Constitution grants to Congress. At issue here is Congress's authority to control immigration. And this court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admissions of aliens. In the exercise of that power, Congress passed and President Clinton signed a law that commands the detention and removal of aliens who have been convicted of certain particular dangerous crimes. The Secretary of Homeland Security, however, has instructed his agents to disobey this legislative command and instead follow a different policy that is more to his liking. In 2023, Alito dismissed the view that the courts could not push back against the president in such cases as a radical theory theory. In 2025, apparently it's correct. I wonder what changed. Finally, Alito offers this remarkable discussion of why the harm the plaintiffs are suffering is insufficient to overcome the government's case for a stay. Any harm resulting from the failure to pay amounts that the law requires would have been diminished if not eliminated if the court of appeals had promptly decided the merits on the government's appeal, which it should not have dismissed. If we sent this case back to the Court of Appeals, it could still render a prompted decision. In other words, the plaintiffs are being harmed not by the government's refusal to pay them, but by the D.C. circuit's refusal to exercise appellate jurisdiction over Judge Ali's Pay now order. I don't even know what to say about this argument other than that if that's how irreparable harm worked well, emergency relief and the role of intermediate appellate court courts would look a heck of a lot different. Alito closes by accusing the majority of imposing a 2 billion dollar penalty on American taxpayers. This comes back to the central analytical flaw in the dissent. The penalty to which Alito is referring is the government's underlying legal obligation to pay its debts. Debts aren't a penalty. They're a literal cost of doing business. And if this is the approach that these four justices are going to take in all of these spending cases to come, that's more than a little disheartening. So what's next? If you've made it this far, congratulations. As for what comes next, well, I'm not entirely sure. We know that Judge Ali is scheduled to hold a preliminary injunction hearing tomorrow. Thursday. That's today. As you're listening, it's very possible that before then or shortly thereafter, he will reimpose some kind of pay now mandate with the hints from the Supreme Court majority is a bit more specific and has a slightly longer timeline. Of course, the government could seek emergency relief from that order too. But I take today's ruling as a sign that so long as Judge Ali follows the court's clues, at least five justices will be inclined to deny such relief. That doesn't do anything immediately for the plaintiffs and other foreign aid recipients who are continuing to suffer debilitating consequences. But it does suggest that sometime soon the government really is going to have to pay out at least some of the money at issue in these cases, and as importantly, perhaps other funding cases too. The broader takeaway though, though, is the role of the court in the Trump cases. This is now the second ruling, including Dellinger, in which the court has in the same ruling moved gingerly but denied the relief that Trump administration is seeking. Two cases are obviously a small data set, but for those hoping expecting that even this Supreme Court will stand up, at least in some respects, to the Trump administration. I think there's reason to see today's ruling as a modestly positive sign in that direction. Yes, the court could do even more to push back in these cases, but the fact that Trump is already 0 and 2 on emergency applications is, I think, not an accident and a result that may send a message to the lower courts, whether deliberately or not, to keep doing most of what they're doing. Again, everybody go subscribe to one first by Steve Platic. It'll make you smarter, I promise. All right, everybody stick around. We'll be right back with the good news. Everybody welcome back. It's time for the good news, everyone. Then good news, everyone. One good news. And if you have any good news confessions corrections you want to submit any misheard song lyrics Monda Greens we love those wooby stories. I haven't heard a good wobby story in a while. If you have a woobie or a blanket or a stuffed animal that you've had in your family for a long time, we would love to hear about it. I think the oldest one we have so far is like 110 years old or something like that. I can't remember. But you can send that in. And you can also send in your shout outs to yourself, a loved one, a government program that's helped you, or a loved one. Whether it's Affordable Care Act, SNAP, WIC, the Packed act which firing these 83,000 veterans is going to make really difficult to get benefits to those folks, whether it's student debt relief or WIC or SNAP or anything, anything at all. Send it to us. And all you got to do do to get your submission in is pay your pod pet tax, which means attach a photo of your pet. If you want us to guess the breeds in your shelter pet, we're happy to try. We suck, but we're happy to try. It's just fun to look at pet pictures. If you don't have that a pet, we can.
