Editors at National Review Online chastise the nation’s highest court for a recent split decision.
The Supreme Court’s main job is to settle questions of law that arise in “cases or controversies.” But it also supervises the federal judiciary. Sometimes, that means getting outside of the Court’s comfort zone of an orderly appeals process when individual judges single-handedly provoke a separation-of-powers crisis.
On Wednesday, in Department of State v. AIDS Vaccine Advocacy Coalition, the Court fell down on that job. It issued a vague order doing little to rein in D.C. federal district Judge Amir Ali from inserting himself above the president in running the U.S. Agency for International Development. The Court’s 5–4 decision, with Chief Justice Roberts and Justice Amy Coney Barrett joining the three liberals, probably only delays the Court’s rendezvous with the USAID dispute.
One of Donald Trump’s first-day executive orders declared “that no further . . . foreign assistance shall be disbursed in a manner that is not fully aligned with the foreign policy of the President,” finding that much current aid was “not aligned with American interests and in many cases antithetical to American values.” These are decisions the president is uniquely empowered by Article II to make, involving judgments far outside the competence of the courts.
Some foreign aid is explicitly mandated by Congress, and some is committed by treaty. But much of USAID’s statutory mandate is vague and infected with serious mission creep that Congress did not authorize. Presidents are bound by contracts made in the past — but only up to a point. Presidents need not continue work that undermines their own foreign policy. If the government stops work, it must pay for what was done, and for what it agreed to pay for. In the words of Oliver Wendell Holmes, “The duty to keep a contract . . . means a prediction that you must pay damages if you do not keep it, and nothing else.” To require a president to continue a foreign aid program he opposes, which Congress never authorized, invades core Article II powers.
