Yves here. This article describes why the Trump Administration effort to shut down USAID fundings without following required procedures is a linchpin battle over the extent of presidential power. It also explains that the court has measures it can implement, such as fines of Trump officials as individuals. Mind you, it might take some doing to identify where these individuals hold their financial assets, but a bank will execute a court order.
By Charles Wise, Professor Emeritus of Public Affairs, The Ohio State University. Originally published at The Conversation
Amid the chaos of the Trump administration’s first few weeks in office, a court case regarding the president’s legal rightto stop payment of nearly US$2 billion in U.S. Agency for International Development contracts poses an important legal question whose answer may show just how strong the country’s separation of powers actually is.
On Jan. 20, 2025, President Donald Trump issued an executive order pausing all foreign aid funding, most of which is administered by USAID. A little more than two weeks later, USAID laid off all but a few hundred of its 10,000 workers.
U.S. District Judge Amir Ali issued a temporary order on Feb. 13 for the administration to not end or pause any existing foreign aid contracts – and again ordered on Feb. 25 that the administration needed to pay the $2 billion owed to various aid organizations for completed work.
After the Trump administration filed an emergency appeal of the decision to the Supreme Court, the justices, in a 5-4 ruling on March 5, found that the federal judge’s decision can temporarily take effect while the district court considers the merits of the case.
Now, the Trump administration is facing a deadline imposed by Judge Ali of 11 a.m. on March 10, 2025, to announce a new timeline for delivering the frozen foreign aid payments.
Amy Lieberman, a politics and society editor at The Conversation U.S., spoke with Charles Wise, an expert on public administration and law, to understand what is fueling this court case and why it has become a test of how far Trump can push the boundaries of presidential power.
What is most important to understand about the Supreme Court’s ruling on USAID funding?
The Trump administration issued a blanket executive order freezing all USAID funds on Jan. 20, 2025. There have been many twists and turns in this case since then, but the Washington, D.C., district court determined in February that the organizations that receive USAID funding to deliver food or health care to people in need, as well as other recipients of USAID money in foreign countries, would suffer irreparable harm.
The U.S. District Court in Washington, D.C., also said that the administration did not follow proper procedures in the law. The Administrative Procedure Act has a set of standards that requires the president to do certain things before making any unilateral kind of action to withhold funds.
The Supreme Court’s March 5 order is not the final ruling on the case, but it does allow the U.S. District Court decision to stand – at least for now. This ruling requires the government to release funds to USAID recipients. The Supreme Court’s decision also directs the district court to clarify what the government must do to comply with the district court’s order, including considering the feasibility of the timeline within which the government must release the money.
This is all taking place in a very short time frame, in the context of the D.C. district court issuing a temporary restraining order. It is saying: Let’s freeze the existing situation in place so we can have a full hearing on this issue.
Why is this case important?
Any administration is prohibited from just withholding funds for any program it doesn’t like without following the procedures prescribed by law. This case matters because the D.C. district court’s decision puts boundaries on what the Trump administration can do to withhold funds that Congress has appropriated. It forces the administration to follow the laws that Congress and previous presidents have agreed on and adopted.
It ultimately comes down to a contest between the branches of government, and, specifically, the presidency and Congress. This is where Articles 1 and 2 of the U.S. Constitution – and how they divided powers between the president and Congress – comes in. The Trump administration claimed that the court should have respected the president’s Article 2 powers to administer the federal government’s spending. The D.C. court acknowledged the president’s powers under Article 2 but said it has to be balanced against Congress’ right, under Article 1, to appropriate funds.
What happens if Trump and his administration do not abide by this order?
Trump’s officials have a decision to make. Are they going to follow the executive order or the court’s order? That’s not a fun place to be. Administrative officials take an oath to uphold the Constitution and the laws of the U.S., which subjects them to court decisions.
The president himself is not responsible for distributing USAID funds. State Department officials are responsible for dispersing the funds, and Secretary of State Marco Rubio was appointed as the acting administrator of USAID on Feb. 3, 2025.
If Rubio and other officials refuse to comply with the court’s order, the D.C. judge, Amir Ali, can hold those officials in contempt of court. Ali has a variety of tools he can use – one is to levy fines against them individually. He could say they have to pay a thousand dollars per day for each day they don’t execute the court’s order.
What will happen next in this case?
The Supreme Court said in a brief opinion on March 5 that the Feb. 26, 2025, deadline for the government to pay USAID and its contractors had already passed and instructed Ali to “clarify what obligations the Government must fulfill to ensure compliance” with paying USAID.
The government has argued to the court that the timeline the judge initially set was too fast – they couldn’t do it that fast.
Now, a few things are going to happen. Ali has ordered the government to develop and release a new schedule to release funds and to have that ready by March 10.
The second part is that the district court judge will probably schedule a hearing on the merits of the case, in which Ali will be assessing the administration’s argument about whether the administration has violated the Administrative Procedure Act. Ultimately, the Trump administration could appeal Ali’s decision, and the case could wind up back at the Supreme Court.
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Am I wrong in thinking there were reports USAID funded propaganda in support of foreign policies, such as supporting Ukraine. Also supporting regime changes and worse. Does the Constitution give the President sole power to conduct foreign policy? As after all, the Supremes were just fine at stepping aside when Presidents pink misted US children. If so, might Trump respond with some justification the Supremes and courts lack even a single atom of jurisdiction in this issue? The article only talks of humanitarian aid. But it seems likely The totally unelected Blob uses this program to take foreign policy OUT of the President’s control. That’s been my admittedly not deep dive take on the real purpose of USAID. Correct me if I’m wrong
You can look for your self as projects are all listed at this .giv site through Q3 of 2024. Searching by country shows where health and ag dominate the programs and where “other” goals are top funded. Search on Ukraine and Georgia and then on Togo and Burkina Faso and you’ll see that this is a very mixed bag with health and food safety tangled up with governance and media influence. When folks defend the program they lean on the aid side but a lot of money flows to influencing local politics.
https://foreignassistance.gov/
Pair that with the loans program: https://www.dfc.gov/what-we-do/active-projects
For a country by country picture of the US soft-power side of things.
We can go all the way back to the 1940’s and George Kennan to see the origins of USAID and all the associated entities to influence the political climate in nations with which we disagree. Beyond being the purported origin of the containment policy towards the Soviet Union, he also outlined the use of political warfare to obtain a favorable climate in foreign nations.
https://archive.law.upenn.edu/live/files/9964-kennan-memo-political-warfarepdf
To this dim bulb, it appears to be a “separation of powers” issue.
Trumps recent actions are the logical culmination of the long running trend in the US Government towards the primacy of a Unitary Executive.
If the Supreme Court does strike down the recent impoundment of funds by the White House, then I would expect the next move to be the Administration challenging the legitimacy of Marbury vs. Madison.
This is moving into a serious Constitutional Crisis.
Stay safe. Find out where your regional political power centres are.
Marbury Madison? please elucidate for this even dimmer bulb, Ambrit…seems to me that even more important than checking the Blob’s propaganda is the opportunity to rein in a runaway executive.
Sorry. I should have appended a link.
Marbury vs. Madison was a very early Supreme Court case (1803) that “established” the courts right to judicial review, i.e. “approve” or “disapprove” of legislation. From it almost all of the Supreme Courts powers flow.
See: https://en.wikipedia.org/wiki/Marbury_v._Madison
Congress appears to have voluntarily abandoned its powers regarding the declaration of war and most FP to the Exec., for example. They defer to the exec, when they have legal powers to act. Since the Rs have small majorities in both houses, it does not look like Congress will challenge the exec.
I would say that the situation is pretty grim: SCOTUS members take bribes openly, and have conflicts of interest. SCOTUS has formalized political bribery has defined money as free speech. This makes a mockery of any semblance of “democracy” and IMO has formalized oligarchy. I would argue that institutional corruption is deep-seated in all three branches, so any hope of “checks and balances” and “democratic process” are slim. But who knows, maybe I am too pessimistic…
I also see a crisis regarding contract law – the government is setting the precedent that it does not have to honor its contracts. If contracts are not sacrosanct, then trust – a key component of any business relationship – in the US government – a pillar of the US economy especially due to ripple effects (I have a contract with the US, its not honored, and I am forced to pass the not honoring a contract to my subcontracts and suppliers. Basically, royalty does not create an efficient economy.
That said, does it hurt oligarchs? I do not think so as they have the political and economic power to enforce their contracts.
That’s the heart of this issue, the payments are for work already completed and accepted by the govt. it’s all for work done before 1/28, so the govt is asking for power to renge on payments for past work, not just to stop new funding from going to orgs it doesn’t like. That also violates the prompt payments act and brings a level of uncertainty to all govt procurements.
I had a cursory look at the some of the projects in the link provided by JustAnotherVolunteer above. If one clicks “Supporting Documents”, there are none, so we don’t really know the details of the “contracts”, and can’t tell if they fall under “contract law”. Could they be “grants”; e.g. the “Citizen Security Project” in El Salvador for $7mn, where USAID is both funding and managing agency. The “implementing partner” is Chemonics International Inc. What exactly did USAID contract Chemonics to do?
Having had many “grants” – several active, I can assure you there is a contract behind every single one of them, which spells out conditions. The contract also always includes as an appendix the workscope. However, because its the feds, the terms are not worth trying to change.
I had a look Chemonics’ website. It indicates “Founded in 1975, Chemonics is a leading global sustainable development firm for one reason: our people”. This essentially says “we were founded … for our people”. Huh? There is ZERO information on the website on the people behind this outfit tasked with carrying out the project in El Salvador.
And what is the aim of this $7mn project?: To “advance real and perceived security in El Salvador through innovative or already proven approaches in primary prevention (benefiting youth and at-risk communities to address root causes of violence before it occurs), secondary prevention (benefiting youth on the cusp of delinquent behavior), and tertiary prevention (benefiting self-reported gang-involved or court-involved youth)”.
One possible explanation is that you may have stumbled on a cover story and front company. There are researchers, some of whom publish at the magazine Counterpunch, who focus on ferreting out this kind of misdirection. Its website is certainly very non-transparent for a “charitable” consulting company.
HQ in Arlington County is a tell.
from wikipedia
“As of December 2023, Chemonics has offices in downtown Washington, D.C., and Crystal City in Arlington County, Virginia, and a headquarters in Navy Yard.”
With all its imperfections, the government bureaucracy has operated relatively well because we all respected the rule of law and court decisions – whether we agreed or not. The system allows legal decisions to be appealed all the way to the SCOTUS. Trump, his oligarch supporters and MAGA close acolytes want to chip away at the system’s legitimacy by creating precedent, including by breaking international agreements. Who knew that disrespectful Canada has been “ripping us off for decades”.
As NC has been long covering, by withholding fund to research labs in colleges, universities and others, oligarchs want full control of research funding and the goodies that come with it. Right now, Columbia University has been informed that $500M in research money will be withheld until and unless, the University expels students who don’t agree with the Gaza genocide – which the Lobby interprets as acts of antisemitism. While Edward Blum successfully eliminated Affirmative Action, the Trump Administration is forcing special treatment for all Jewish issues.
“When considering/evaluating the role of USAID, it seems important to keep in mind that the American security establishment/foreign policy apparatus actively began to turn the tools and tactics of counterterrorism, counterinsurgency warfare, and regime change that they had developed for use abroad, during the Cold War, back against its own citizens in the U.S. around 2016 (with the Trump election, Russia, Russia, Russia etc). The then emerging right wing populists suddenly found themselves in the same position as the New Left in the 1960s–a supposed internal threat to the American Empire which needed to be crushed.
This made populists the equivalent of foreign adversaries, rather than merely normal domestic opponents. Such a threat unleashed what has been described as a whole-of-society approach, meaning the integration of government, military, private sector, media, and non-profit spheres as well as international organizations all in the service of our intelligence community to crush the populists through censorship, surveillance, and propaganda/cognitive psych-ops (especially effective among liberal democrats–perhaps explaining their zombie-like response to Trump).
Hat-tip to JustAnotherVolunteer for the link above … some really interesting info on the type of aid, and who the “implementing partners” are in some cases.
In thinking about this, if USAID has contracted the provision of the services (or whatever) to the implementing partner, the partner has provided the services, and USAID then does not “pay” or decides to withhold the funds, isn’t the legal recourse for the implementing partner to sue USAID? That is assuming the contract entered into between the two parties has provisions for this. Why exactly do US courts need to get involved, or get ahead of this?
There is another, longer term issue at play. The likelihood is that there is another budget by Continuing Resolution. Meaning, a set of spending obligations from Congress for the Administration to …have its way with unless and until a judge or judges determine that there is an obligation for the Budget to be implemented by the President. Of course, the President can’t be sued, but we’ll see if Little Marco can be held liable for not signing the checks that the Congress obligates him to sign.