Why Alito was ‘stunned’ by SCOTUS’ misguided USAID ruling

In last week’s commentary I talked about the two-fold constitutional crisis the Trump administration is facing: 

One from the unelected and unaccountable administrative state, which seeks to rule over us instead of doing our bidding by faithfully serving the president we elect; and the other from a judiciary engaged in radical overreach such that it threatens the executive branch and our constitutional order itself.

That crisis came to a head this week at the Supreme Court in a 5-4 decision at least temporarily embracing corrosive judicial supremacy.

“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?” Justice Alito asked, in connection with the decision.

“The answer to that question should be an emphatic ‘No,’” Alito replied – in a blistering dissent joined by Justices Thomas, Gorsuch, and Kavanaugh – “but a majority of this Court apparently thinks otherwise. I am stunned.”

The associate justice was referring to the Court’s unwillingness to overturn D.C. District Judge Amir Ali’s temporary restraining order – a generally non-appealable directive – requiring that the Trump administration disburse State Department and USAID funds frozen during a 90-day review period and allegedly owed not only the case’s ten plaintiffs, but all foreign-aid and grant recipients — $2 billion within 36 hours.

There are just a few problems with that ruling, beyond the primary question about whether the president has the authority to pause contracts and withhold payments while it reviews them for fraud and abuse; beyond the fact that the judge effectively ordered a preliminary injunction which is appealable; and beyond the fact the order doesn’t just enjoin the presidential policy with respect to the plaintiffs – freezing the pause on the review of their foreign assistance contracts and/or grants – but that it does so for everyone everywhere in a nationwide injunction while mandating the administration make $2 billion in payments almost immediately.

Even more fundamentally, at core this can be seen as a contract dispute. Such disputes are dealt with in the Court of Federal Claims, not in district courts.

“A federal court has many tools to address a party’s supposed nonfeasance,” Justice Alito wrote. “Self-aggrandizement of its jurisdiction is not one of them.”

Yet, perturbed, he added “Today, the Court makes a most unfortunate misstep that

rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers.”

The Court did so by not reversing the lower court’s order. Instead, it merely asked the judge to “clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.”

Justice Alito’s colleagues, namely Justices Thomas and Gorsuch have called on the court to consider whether universal injunctions are legal – a position endorsed, ironically, by the Biden administration. Alito called on the Court to consider clarifying the standards for distinguishing between a non-appealable temporary restraining order and a preliminary injunction.

The Court seems to be moving deliberately – at best letting the lower courts err until the cases sufficiently ripen to be smacked down.

But in the interim our constitutional order is under attack.

So some are calling for action outside the Courts.

House Judiciary Committee Republicans last week passed a bill that would curtail universal injunctions, ticketing it for the House floor.

Senate Judiciary Committee Chairman Chuck Grassley suggested in floor remarks that he would be open to considering such legislation.

House Republicans have also filed articles of impeachment against some of the left-wing judges engaged in apparent overreach and activism.

Several congressman launched a Judicial Activism Accountability Task Force aimed at “exposing judicial activism, with the ultimate goal of impeaching rogue, activist judges,” one member said.

Some activists have also proposed ideas like reducing the power of the progressive-dominated D.C. District Court – where many cases dealing with administrations are brought – by modifying its authorities it to focus on local D.C. crimes, and to offset the $2 billion in foreign assistance funding in the case that incensed Justice Alito by reducing the federal judiciary’s budget by that same amount.

The White House also issued a memorandum last week proposing a unique way to curtail what it considers frivolous lawsuits seeking injunctions that halt administration actions.

It calls on all agencies to request of federal courts that under Federal Rule of Civil Procedure 65(c), plaintiffs be made to post injunction bonds – to “require plaintiffs post security equal to the federal government’s potential costs and damages from a wrongly issued preliminary injunction or temporary restraining order,” according to a fact sheet.

The idea is that this will deter illegitimate lawsuits by raising the risk for those bringing them.

Ultimately, the Supreme Court may rise to the occasion and defend our constitutional order.

The question is how much damage its willing to let be done to the presidency, the judiciary, and the republic in the interim.