One of the big questions going into this administration was the degree to which the Supreme Court would go along with some of the more extreme moves on the agenda. It sure hasn’t taken long to get an answer – courts can move fast when irreparable harm is asserted to justify said speed. We have an indication today that the SCOTUS won’t be afraid to say “No” to Trump. That being noted, it’s also obvious that the Court couldn’t be more divided. The 5-4 majority in today’s Global Health Council et al. v. Trump Administration left a lot to be determined by the district court with its vague “middle of the road” order going forth. But what cannot be disputed is that a majority of justices weren’t willing to sign off on whatever the administration wanted. No, five of them ruled that what Congress wanted still matters.
As reported by CNN, there remain questions as to “how” to go about distributing the funds already appropriated by Congress. That those funds – ones already earmarked, will get to the spent by getting them to intended parties has been decided:
A divided Supreme Court on Wednesday rejected the Trump administration’s request to keep billions of dollars in foreign aid approved by Congress frozen. However, the court did not immediately say when the money must be released, allowing the White House to continue to dispute the issue in lower courts. The ruling was 5-4.
As a means to re-set the usual assumption that six justices sit in opposition to the three more liberal members, it’s best to get used to seeing Chief Justice John Roberts and Amy Coney Barrett align with Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson on some issues – usually tapering some of the more radical policies. Do not expect Alito or Thomas to wander far from the administration’s requests. Regardless, it’s never bad to have the Chief Justice on one’s side. Defining one’s “side” is a bit difficult in this matter as set forth below:
The majority noted that given a court-ordered deadline to spend the money last week had already passed, the lower courts should “clarify what obligations the government must fulfill to ensure compliance with the temporary restraining order.”
It sounds counter-intuitive but in this case the “restraining order” was issued to restrain freezing the funds – the order instructed the administration to release the money as Congress intended. Thus, compliance with the “restraining order” means action – spending the money, as opposed to freezing all of it.
In a strongly worded dissent, Alito wrote that he was “stunned” by the court’s decision to permit the lower-court judge to order the administration to unfreeze the foreign aid at issue in the case. Alito added: “A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them.”
That is a little weird, given that this isn’t a dispute between the Court and the Trump administration. It isn’t unusual to see courts determine issues where parties assert that an administration is outside the bounds of what Congress intended. So that’s a bit odd. As to enforcement of the district court’s order, that could present a problem since the court is relying on the administration to abide by the ruling and go about spending the money as Congress directed. But that’s hardly the court’s fault or primary issue. The principle itself has been determined.
This will hardly be the last word – indeed, it’s a bit debatable as to the degree this is even the first word as to how the Court will approach assessing the legality of the administration’s moves. We can be certain, however, that the Court will find itself front and center on many issues that will inevitably fall from the Trump administration’s unprecedented agenda. Without any sense of self-aggrandizement, the Court will have an increasingly visible and critical role in setting the nation’s direction going forward.
But that part is not new.
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Of course, the law-abiding, not lawless at all, trump regime will immediately comply with the court order.
They know the consequences of ignoring it.