President Donald Trump’s pick to lead the U.S. attorney’s office in the nation’s capital got a First Amendment lesson last week, when Georgetown’s law school dean reminded the prosecutor that he can’t dictate how the school teaches. Another constitutional course came from a federal judge in the nation’s capital this week, with a refresher on the separation of powers in the case over Trump’s foreign aid funds freeze.
“The provision and administration of foreign aid has been a joint enterprise between our two political branches,” U.S. District Judge Amir Ali wrote Monday. The Biden appointee recounted the basic notion that Congress has the “power of the purse” and appropriates funds toward certain foreign policy aims, while the president “decides how to spend those funds in faithful execution of the law.”
He noted that this case “involves a departure from that firmly established constitutional partnership,” because the executive has “unilaterally deemed that funds Congress appropriated for foreign aid will not be spent” while offering “an unbridled view of Executive power that the Supreme Court has consistently rejected.”
To support his ruling partially granting a preliminary injunction against the government, Ali cited writings from Republican-appointed justices to set the backdrop for his decision affirming the administration’s — and Congress’ — role in our system.
The judge cited rejections of executive overreach in foreign policy from Chief Justice John Roberts, Justice Brett Kavanaugh and the late GOP icon Antonin Scalia, in an opinion joined by Roberts and Justice Samuel Alito, which observed that England had given the King exclusive foreign policy control but that the United States “had other ideas” and “adopted a Constitution that divides responsibility for the Nation’s foreign concerns between the legislative and executive departments.”
Using Roberts’ phrase that this balance is “firmly established,” Ali wrote that he was reaffirming “these firmly established principles of our Constitution.” He said the plaintiff groups that brought the lawsuit against the government’s blanket freeze will likely succeed on their separation-of-powers claims.
He rejected what he called the administration’s “unbridled understanding of the President’s foreign policy power, which would put the Executive above Congress in an area where it is ‘firmly established’ that the two branches share power, … where Congress is exercising one of its core powers, and where there is no constitutional objection to the laws it has made.” This is the case that was at the Supreme Court on an emergency basis last week, when the justices split 5-4 in refusing Trump officials’ bid to upend an earlier order from Ali. Roberts was in the majority with Justice Amy Coney Barrett and the three Democratic appointees, over dissent from Alito, Kavanaugh and Justices Clarence Thomas and Neil Gorsuch. Litigation is set to continue in the trial court with a joint report from the parties due by Friday to Ali on the defendants’ compliance with his order and next steps. But the case may well return to the high court — and if it does, we’ll see how the justices cited in the trial judge’s ruling come down. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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