The Supreme Court on Tuesday froze a lower court judge’s decision ordering that foreign aid money already approved by Congress be spent. The ominous move may signal a coming embrace of the Trump administration’s radical “theory” that a president can choose to withhold appropriated funding.
That gambit, called a pocket rescission, would let the president zero out any congressionally approved spending he didn’t like just by waiting for the fiscal year to wind down. It’s an unprecedented expansion of presidential powers into a realm explicitly reserved for the legislature.
This time, Trump claimed to claw back billions in foreign aid spending.
Chief Justice John Roberts signed the order, bolstering Trump’s hopes even more, given that the justices to his right have shown themselves to be all but locks for the administration.
The Roberts Court has, since Trump’s emergence into politics, embraced previously undreamt expansions of presidential power, culminating in the granting of huge swaths of immunity from criminal prosecution. It has also, most notably under Democratic administrations, neutered executive branch federal agencies, funnelling all the power in the branch to the president.
Tuesday’s order is also a mark of how much more acquiescent Trump’s allies — in both the courts and legislature — have become in his second term. His administration floated both rescission packages (requiring a simple majority vote in Congress) and pocket rescissions (a unilateral move by the administration) in his first term. The attempt to pass a rescissions package in 2018 failed in the Senate when Sens. Susan Collins (R-ME) and Richard Burr (R-NC) joined the 48 Democrats in opposing it. The administration dropped the pocket rescission effort after the Government Accountability Office found it to be illegal a few months later.
But Russ Vought, again Trump’s Office of Management and Budget director, resurrected the idea in the second term. This time, a rescissions package passed the Senate in July with only Republican votes, notwithstanding the defections of Collins and Rep. Lisa Murkowski (R-AK). And the administration is less cowed by the GAO ruling in the face of an ever more amenable Supreme Court.
A district court judge found Trump’s $4.9 billion pocket rescission to be illegal, writing that “there is not a plausible interpretation of the statutes that would justify the billions of dollars they plan to withhold.” The appeals court upheld his ruling last week.
The Supreme Court requested a response to its order by Friday evening, on its way to handing down a final decision.
Read the order here: