The Supreme Court Just Ruled Against Trump—But Don’t Get Too Excited

Political commentators and journalists keep asking whether Donald Trump will follow court orders overruling his illegal and unconstitutional executive orders, but Trump has already violated court rulings during the first six weeks of the junta he is running with Elon Musk. Specifically, Trump has refused to restore funding to USAID, even though he has been ordered to do so several times. 

Trump was supposed to restore this critical, life saving funding way back on February 13th. That’s when U.S. District Judge Amir Ali (a Joe Biden appointee) entered a temporary restraining order (TRO) requiring the Trump administration to keep sending out money for food and disease prevention while Trump argued his case in the courts. Trump ignored this TRO, did not turn the money back on, caused incalculable suffering, and violated the court order. 

By February 25, Judge Ali was fed up with Trump’s flagrant disregard for the court’s ruling, and ordered Trump to make payments, by midnight, February 26, for work already completed. Trump again disregarded that order and appealed to the Supreme Court, asking his justices to place him above the law, as they have done in the past. 

John Roberts, as per usual, did Trump a solid and placed an administrative stay on Judge Ali’s TRO, which again allowed Trump to continue to refuse to pay out the money and let people die. 

That happened last week. Then, on Wednesday, one day after the State of the Union, during which Trump appeared to tell Roberts “Thank you again. Thank you again. I won’t forget,” the Supreme Court lifted its administrative stay. This should mean that the administration has to resume USAID payments—but there was a mighty big catch. In its 5-4 majority opinion (the decision was unsigned, but we know that the three liberal justices as well as Chief Justice John Roberts and Amy Coney Barrett were behind it), the court ordered Judge Ali to “clarify” his TRO with an eye towards the “feasibility” of government compliance. 

Folks, I know law and court orders can sometimes be confusing, but Judge Ali’s TRO in this case was as clear and feasible as this stuff is ever going to get. The U.S. government has made USAID payments for 63 years. Trump stopped them for a few weeks. All the government has to do is turn the money back on. This isn’t remotely complicated. People have completed work, and are waiting to be paid by the federal government. All the government has to do is pay them. We know this is feasible, because the government has made these payments, uninterrupted, for decades.  

Roberts’s words in this opinion (as I mentioned, the opinion was unsigned but this is a Roberts joint if I ever saw one) are there solely to give Trump another opportunity to ignore the TRO and further delay life-saving money from being paid out. Everyone knows or should know what delays are going to happen. Judge Ali has scheduled a hearing on the issue for today. Soon after that hearing, he will issue an order that amounts to “I’m sorry John, did I stutter? I thought ‘SHOW ME THE MONEY’ was pretty clear,” and issue a revised deadline for the government to resume funding. Trump will ignore this order and appeal again to the Supreme Court, this time claiming that the order to resume funding is “unfeasible.” Roberts will again hear the complaint. Additional time will pass, and additional people will be harmed, as Roberts and Trump continue their dangerous game of Ebola footsie over whether court orders still mean anything in the United States of America. 

Assuming Roberts and Barrett again join the Democratic justices on the side of the rule of law, Trump will eventually be ordered by the Supreme Court to restore funding, and then we’ll see if Trump complies (spoiler: he won’t), or if Roberts merely pretends Trump is in compliance in order to save face. And then we’ll do it all again with the other cases where Trump has been ordered to restore funding but refuses to. I keep trying to tell people that we can “win” all the court orders we like, but if Trump simply refuses to turn the money back on it simply doesn’t matter. 

Astute readers will note that Roberts, with his slavish desire to appease Trump, isn’t even the biggest problem with this ruling. As I mentioned, the decision was 5-4, and that means there are four justices who don’t think Trump can be compelled to restore funding and follow the law. Those four are precisely who you’d expect them to be: Sam Alito (who wrote the dissent in this case), Clarence Thomas, Neil Gorsuch, and alleged attempted rapist Brett Kavanaugh. 

Alito’s dissent is absolutely bonkers, and the best way to convey that is to do a close read of the first paragraph of his argument. Here’s what Alito wrote: 

“Does a single district-court judge who likely lacks jurisdiction 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.”

Allow me to shovel away the bullcrap Alito has put on the page, and between the lines. 

• “Does a single district-court judge” – Do you remember when a single district-court judge (Matthew Kacsmaryk) issued a nationwide ban on the abortion pill? I do. So does Alito. Single district-court judges do indeed have incredible power in this country, which is why Republicans work so hard to fill these positions with judges more loyal to MAGA than the rule of law. 
• “who likely lacks jurisdiction” – Judge Ali is a district court judge in the D.C. circuit where the federal government is located. If he does not have jurisdiction to hear a case about whether the federal government can be compelled to follow the law, nobody does. Creating a world where nobody can force the Trump administration to adhere to the law is, of course, Alito’s point. 
• “have the unchecked power” – It’s not “unchecked” power. The Supreme Court is the check! Alito is writing in a case where the Supreme Court is literally reviewing the power of the district court, he just doesn’t like the outcome of that review.
• “to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?” – It’s been a while since Alito did anything remotely resembling “law,” so maybe he no longer understands how contracts work. You see, in the normal course of business, the government will enter into an agreement to pay money to others in exchange for goods or services. These agreements, which we colloquially call “contracts,” are governed by various legal standards. Under certain circumstances, these contracts can be modified, or even cancelled, but “The richest man in the world wants people to suffer and die” is not normally a valid reason for the government to void its duly signed and executed contracts. I hope this refresher course helps Sam as he muddles through his miserable existence. 
• “The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise.” – Have you ever been talking with a conspiracy theorist, or a village idiot, and they ask a question based on lies and misinformation, and then answer their own question and act like that answer is dispositive on the issue? “If the Earth were really a sphere, wouldn’t we be sliding off of it like an elephant trying to stay perched on a large ball? And the answer is clearly ‘yes’!” That’s what Alito is doing here. Somebody needs to get the old man off of YouTube. 
• “I am stunned.” – This is a lie. Alito is not stunned. He understands how TROs work. He is, perhaps, surprised that he didn’t have Roberts in the bag to rule that Trump is the sole decider on every dollar of federal funding. But these are just the opening rounds of this fight and Alito knows as well as I do that Roberts is still more likely than not to side with Trump in the end. 

The worst part about this case is that this is the fight we’re having now, over a simple TRO and a basic application of the rule of law. We’re not even at the “merits” of Trump’s desire to cancel USAID funding and refuse to transmit money promised under Congressional authority—on an executive whim. When we get to that stage, this decision indicates that there are at least four votes to allow Trump to do whatever he wants, and that Roberts is at least amenable to Trump’s arguments as well. 

I have come to understand that USAID funding is not popular: Republicans have never liked it, and they seem to have convinced so-called “regular” Americans that this country should not be using even a small fraction of its immense wealth to slow the spread of diseases like AIDS, Ebola, cholera; to combat starvation; or to generally do anything other than help rich people reduce their taxes. I grudgingly accept that I cannot convince a majority of my fellow Americans to be better human beings, nor can I show them that preventing global suffering redounds to their personal self-interest in the form of fewer desperate immigrants and refugees, less violence and instability, and the ability to walk through a major airport without fear of catching the plague. If Trump, Musk, Republicans in Congress, and their MAGA-aligned majority of deplorable Americans want to end USAID, they can. No law or constitutional principle can save this life-saving program. 

But there is a legal way to end this program that Trump and Musk refuse to follow, and I cannot understand why people are not demanding that he end it legally. Republicans control Congress, they can pass a budget that does not fund USAID. Contracts that have already been filled will still have to be paid, but all future contracts and funding can be prevented. This isn’t even complicated. They can use the power they won in the last election to do all the terrible things they want to do. 

What they’re not supposed to be able to do is refuse to honor the budget passed by previous Congresses and signed by former presidents. They’re not supposed to refuse to follow simple court orders. I would like the mainstream media and the opposition party politicians to get their heads out of their asses just long enough to keep their eyes on that ball. Nobody need ask Americans to embrace helping others, we can all see that our country is too selfish and broken to support that. All people need to do is demand that Trump follow the law and export his cruelty around the world in a legal and constitutional way. 

This fight isn’t about whether it should be U.S. policy to prevent Ebola in foreign countries. This fight is about whether it should be U.S. policy to prevent a dictatorship in the United States of America.