In a 5-4 decision, the Supreme Court disparaged Trump’s claim that presidents can do whatever they want, by ordering the administration to disburse $2 billion in USAID grants in compliance with lower court rulings. Although the narrow ruling has been widely applauded as at least a temporary victory for the rule of law, the victory is overshadowed by ominous signaling in the dissent.
In response to a one-paragraph ruling, Justices Alito, Thomas, Kavanaugh and Gorsuch wrote lengthy and strident dissents. Of the four justices, at least two are ethically compromised by their refusals to recuse from cases involving their own billionaire benefactors. Justices Alito and Thomas have also faced credible impeachment demands following their partisan embrace of Trump’s MAGA ethos.
They did not just dissent in the USAID ruling, they disassembled. They lied about both the court record and the district judge, and they drew a map to show Trump how to frustrate the case going forward.
The majority protected the legislature’s role
The Court’s 5-4 majority opinion, in which Justices John Roberts and Amy Coney Barrett joined the three liberal justices to narrowly protect Congress’ power of the purse, holding that under Article I, Section 8 of the U.S. Constitution, since Congress had already appropriated the USAID and it was already signed into law, Trump could not legally freeze it. In other words, a president does not have the power to break, disregard or rewrite laws just because he disagrees with them.
Article I gives Congress, not the president, the explicit power of the purse, but more than that, congressional authority to pass legislation and control the nation’s money is, by design, a Constitutional check on the power of the presidency.
The legislature’s role is key to the carefully calibrated separation of powers, which has held a deeply divided nation together through nearly 250 years. Perhaps more ominous than misrepresenting the court record, the dissenting justices conveyed their willingness to scrap the centuries-honed balance of powers by allowing Trump to usurp the legislative role through the stroke of their own pen.
Alito didn’t just dissent, he disassembled and lied
In a dissent that reads like a partisan diatribe from a Trump social media post, Alito wrote an eight-page rant that blatantly misrepresents the court record. He claimed that the district judge issued a “second order” because he was “frustrated” with the pace of aid disbursement under his previous order. This was patently false. US District Judge Amir Ali, in fact, issued repeated orders against relentless pushback from the Trump administration. A quick scan of the docket sheet easily reveals that Ali issued at least five orders that Trump disregarded, not “two” as Alito claims.
The administration’s refusal to pay, in continued defiance of Judge Ali’s orders, is what prompted Ali to issue his final order including a payment deadline. But instead of reminding Trump that presidents must even obey court orders they disagree with, Alito misrepresented the orders and lied about what led to them, just as he lied about common law history in the Dobbs decision.
In a functioning democracy governed by the rule of law, this decision would have been 9 to 0. Simply put, Congress awarded the aid and passed the law; the president has to follow it. Instead, Alito inveighed misleadingly:
Does a single district-court judge … have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?
The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned.
Today, the court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers.
Objecting that the government will “probably lose forever” the $2 billion ordered to be disbursed, Alito appears not to understand how federal aid works. The legislature, not Judge Ali, decided how much aid to grant, to whom, and for what. Such aid appropriations are never expected to be reimbursed, so Alito calling them a “$2b penalty on American taxpayers” was pure, results-driven propaganda.
The dissent also suggested that Trump could seek a full merits review by filing a petition for a writ of certiorari, indicating that they will grant the writ of cert and delay the aid for months.
There’s stunning hubris here all right. But it emanates from Alito, for assuming that Trump can disregard federal law simply because he and the dissenting justices don’t approve of Congress feeding the poor or treating the sick, notwithstanding their own self-professed Catholicism. That four Supreme Court justices support Trump’s power grab, and are willing to lie about it, suggests Trump’s coup may well succeed.
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