Time to Worry About SCOTUS?

As frequently noted, the Supreme Court has been far more reluctant than lower courts to rule against Trump. There are plausible explanations for this disparity other than the assertion by many on the left that pro-Trump bias is at work. However, yesterday’s 6-3 emergency docket ruling in Department of State v. AIDS Vaccine Advocacy Coalition (aka Global Health Council v. Trump) is a major cause for concern. The conservative majority’s siding with the Trump administration here not only seems clearly wrong on the merits but rewards a series of outrageous, bad faith tactics by the administration.

While the case deals with the arcane subject of impoundment of appropriated funds, its subtext involves important issues of separation of powers. The background is described in detail here and here. To summarize:

In early 2025, the Trump administration impounded (i.e., decided not to spend) billions of dollars in foreign aid funds appropriated by Congress because it disagreed with Congress’s policy choices in enacting those appropriations. The president has no constitutional authority and only limited, temporary statutory authority (see below) to refuse to carry out an appropriation act based on policy differences with Congress.

The Impoundment Control Act (ICA) provides that if the president objects to spending appropriations for policy reasons, he may send a message to Congress proposing the “rescission” (i.e., repeal) of the funds. The ICA allows the funds to be withheld for 45 days while Congress considers a rescission bill. However, the funds must be made available for use if Congress fails to pass such a bill within the 45 days.

The administration failed to submit a rescission proposal to Congress early in 2025 when it decided not to spend the foreign aid funds. This was a blatant violation of the ICA.

Prospective recipients of the foreign aid funds sued the administration over the impoundment. In March 2025, a federal district court found the impoundment illegal based on the ICA violation and other grounds and ordered the funds to be made available. The court’s order was in effect for about four months but the administration apparently did little if anything to comply with it.

At the end of August, the administration finally submitted a rescission message to Congress–less than 45 days before the appropriations expired (i.e., ceased to be available for use) on September 30. This so-called called “pocket rescission” also violated the ICA since it enabled the president to unilaterally (and unconstitutionally) repeal the appropriations without congressional action. Thus, the administration violated the ICA once in early 2025 in order to position itself to violate the Act again in August, with the second violation effectively eliminating the funds.

In the litigation, the administration offered little defense of its actions on the merits. Rather, it perversely argued that the ICA barred the suit. Specifically, it maintained that an ICA provision authorizing the Comptroller General to sue to remedy violations of the Act foreclosed challenges to impoundments by any other party. As Justice Kagan’s dissent points out, this argument is contradicted by the plain language and entire background of the ICA.

The administration’s argument is not only wrong but also thoroughly disingenuous. The Trump administration is doing everything it can to hamstring the Comptroller General in carrying out his functions under the ICA and would undoubtedly contest his constitutional ability as a legislative branch official to sue. In short, the administration’s real strategy is to prevent suits by anyone to challenge its impoundments.

The administration also made much of the difficulties it would face in applying the funds at the eleventh hour. Of course, any such problems were entirely of its own making due to its protracted, unlawful delays.  

It’s not surprising that the Trump administration would engage in such deceitful conduct and legal arguments. What’s shocking is that the six conservative justices sided with the Trump administration and condoned its misconduct. The majority offered no explanation beyond bare assertions that the administration had made “sufficient” showings to justify emergency relief; nor did the majority offer any rebuttal to Justice Kagan’s cogent dissent.

The majority concluded its brief order by noting that it reflected only their “preliminary view” and “should not be read as a final determination on the merits.” But the apparent effect of the Court’s action is to allow the appropriations at issue to expire unused, thereby mooting the case.

Given the Supreme Court’s typical (and unfortunate) lack of explanation for emergency docket rulings, there’s no to way to discern the majority justices’ thinking. However, it’s hard to see any sound basis for their action. Perhaps it’s an example of the majority’s extreme ideological bias toward the executive branch that was on display in its deeply flawed presidential immunity decision. Perhaps, the majority somehow accepted “the asserted harms to the Executive’s conduct of foreign affairs” as outweighing all other considerations. Hopefully, it’s not a sign of bias toward or fear of Trump. In any event, the outcome hardly instills confidence that SCOTUS is prepared to stem Trump’s lawlessness.