Temporarily lifted a lower-court order

John Roberts allows Trump to withhold foreign-aid funds approved by Congress — for now

The chief justice of the Supreme Court temporarily lifted a lower-court order that directed the administration to prepare to spend $4 billion Congress previously appropriated.

By Josh Gerstein and Kyle Cheney

Chief Justice John Roberts has revived President Donald Trump’s bid to slash $4 billion in foreign-aid funding without Congress’ approval, adding new urgency to a legal clash over the power of the purse.

In a one-page order Tuesday, Roberts granted the Trump administration’s request for a temporary hold on a lower court’s directive that officials prepare to spend the money by the end of the month — when the current budget cycle comes to a close. Aid groups sued earlier this year to force the administration to formally “obligate” the funds, amid signs that Trump intended to gut the congressionally approved foreign aid budget.

Roberts did not provide any explanation for his ruling, but it is likely to remain in place while the full court considers how to handle the emergency appeal the Justice Department filed Monday. That appeal seeks to set aside U.S. District Judge Amir Ali’s most recent ruling that the administration is acting illegally by refusing to ensure the money can be allocated by the end of the fiscal year on Sept. 30.

Roberts did, however, nod to the potential for lawmakers to resolve the matter, noting that Trump’s announced cut is “currently pending before Congress.”

Trump is testing the limits of the presidential power of “impoundment,” a unilateral decision to withhold funds approved by Congress. A 1974 law known as the Impoundment Control Act requires the president to seek congressional approval for any such “rescissions” from the approved budget. Congress typically has 45 days to act on such a proposal. If Congress does not act, the funds must still be spent.

But last month, Trump informed Congress that he intended to cut nearly $5 billion through an unprecedented “pocket rescission,” a tactic through which Trump has claimed the power to slash congressional spending with fewer than 45 days before the end of the budget cycle. (The nearly $5 billion cut Trump initiated includes $4 billion in foreign-aid spending at issue in the lawsuits that have reached the high court, as well as about $900 billion that had been slated for the United Nations and related organizations but is not at issue in the litigation.)

Since the timing hamstrings Congress’ power to respond, Trump and his aides say the cuts will automatically take effect.

Ali, however, ruled that Trump’s tactic was an illegal usurpation of the power of the purse, which the Constitution gives to Congress.

The case has led to complex tangles in the lower courts. Last month, a three-judge panel ruled, 2-1, that the aid groups and grant recipients could not challenge Trump’s effort to impound the money because only a legislative branch auditor, the comptroller general, has the legal power to do so.

The aid groups asked the full bench of the D.C. Circuit to take up the issue. That apparently prompted the original panel to revise its opinion late last month in a way that left a door open for the aid groups to challenge the Trump administration’s inaction under a 1946 federal law, the Administrative Procedure Act.

Ali granted the groups’ request and a different D.C. Circuit panel declined to block his order, leading to the administration’s emergency appeal to the Supreme Court.