There are two very different ways to understand Wednesday night's order temporarily absolving the government from spending $1.5 billion in obligated funds. We'll know soon enough which one is correct.
Thank you for this, maybe, reassuring summary. I would note that, via my son who works for one of the NGO’s involved, the Government aka Peter Marocco spent most of Wednesday canceling the remaining contracts that were on the books in order to be able to at the very least plead that it would be impossible to restore funding so quickly and also just because they are cruel and want Americans working in foreign aid to lose their jobs and people to die. I would hope that at the very least the NGO’s would be able to present this sabotage of the payment system as evidence before SCOTUS for their malign intent
I wonder whether Roberts will back Trump simply because he is afraid that Trump will defy his order and he doesn't want the Court to appear impotent. He may be more concerned with maintaining the appearance of a co-equal branch of government than with maintaining democracy. If the Court rules against Trump, maybe some Republicans will grow a backbone.
I have no idea what Roberts thinks will happen if he lets the law apply to Trump but I sure hope he has learned how bad he is at predicting the results of his rulings.
Well, Justice Roberts HS certainly been wrong about some of his predictions about the real world consequences of his decisions, even where he considered them at all.
So if in the long run Roberts wants to re-litigate Marbury v. Madison, strike down the Impoundment Act of 1974 (I was literally around at that time and Congress passed it for reasons exactly like where we are now) he has his "marching orders". This court has had no qualms about striking down decades old precedent resulting in giving Trump what he wants-"L'etat-c'est moi", so we'll see how well this plays out if SCOTUS ends up neutering the separation of powers-whether in one fell swoop or bit by bit through piecemeal defiance of TROs around these executive orders.
I understand the legal merits of the stay and get the jurisdictional issues but perhaps Roberts could use some of that country coming together over his wise rulings by denying the administration the air of invulnerability from the courts.
The issue in the case was whether the U.S. could enter contracts with Congressionally appropriated funds, the third party contractors then performed the contractually required work and submitted their bill for payment. The Court entered an order requiring the U.S. to live up to its contracts and make payment. The Trump Administration refused to pay and were held in civil contempt and then an enforcement order was entered. In order to comply all the U.S. had to do was honor their contracts by making payment. The U.S. had no irreparable harm as appropriated funds were available. CJ Roberts administrative stay only confirms that the U.S. is an unreliable contract party.
I really want to thank you for your hope honesty and humor reporting truth to power with evidence and history. We will find out soon i hope too. It will be raining this weekend but it may be time to rain our voices too. Peace. We are in this together.
I wonder if this bombardment of dubiously legal hack and slash spending cuts and freezes will ever end. Tangentially related, fellow readers, did you know Taiwan and South Korea were not real democracies until 1987? Taiwan basically had a slow roll of reforms from military dictatorship to democracy. South Korea had a student led peaceful revolution.
By the same logic, we didn't extend franchise (and arguably still haven't!) to everyone until VRA in 1965. This is simultaneously comforting and distressing.
An educational analysis, but I feel that Roberts should have erred on the side of Congress's authority of the purse and allowed for the contracted payments. It's a little like he's afraid of Trump and his goons. What a legacy.
“…the only conclusion Roberts’s order may reflect is that two extra days, however harmful they might be to some of the plaintiffs, will give the Court at least a little bit of time to make a principled, reasoned decision…”
And this is the playbook for the corrupt, wealthy and powerful. Any pain that can be inflicted on others is worth it. Any exploitation of the courts is worth it. Any refusal to abide by “norms” is worth it. It’s ALL a win.
I agree with you, Steve; it'll be the Goldilocks choice.
But, Trump is not a fan of the Goldilocks approach to jurisprudence. He's more of a scorched-earth kind of guy. And if it's going be the cynical path, he'll love it.
If SCOTUS gives him a sniff of stiffing creditors, Trump will take it and run.
Can you imagine what happens when good ole USA reaches the debt limit (after the GOP shuts down the government -- no 'waste, fraud, and abuse if you close the federal government) and Trump starts negotiating with our debt holders? The billionaaires will be shorting T-bills like crazy, Trump will cut a deal with debt-holding China and put a happy-meal face on it.
Trump and Musk had better get to Fort Knox quick, and spin that gold into DOGEcoin.
This analysis does a disservice to the reader and oversimplifies. Working in fed contracts for almost 30 yrs, I was struck by the fact that the text of the initial TRO and Judge Ali's Order Denying Motion To Stay Pending Appeal don't show any understanding of legally required invoice review . His orders are not anything any acquisition professional would be able to make sense of.
The Order yesterday literally says pay for "all work completed prior to February 13". That's a head scratcher.
Let's say I am the USAID CO or COR, and I got an invoice this morning for work on for the month ending on 2/12/2025 (it's very common to get an invoice weeks/months after work is completed). I am in contempt if I don't pay it in the next few hours. That's nuts.
The Prompt Payment act gives my agency 30 days for a contract to review and approve an invoice, and for grants (the vast majority of USAID spend) has their own payment terms, and since these are grants, the terms of the grant don't cede a lot of rights to the grantee.
I never pay an invoice a few hours after I get it, for me it's more like 10 days. Usually a COR would get an alert in the invoice processing system, then review the invoice line by line, compare it against the text of the contract, and match that invoice's expenses against a work plan and the spend plan, verify what funds remain on the contract, reach out to stakeholders to verify the tasks were completed, verify receipt of work products, ensure the costs are allocable, compare the invoiced costs against appropriate CLINs, etc. etc.. It's called due diligence and it's legally required.
Approving invoices is maybe 10% of my job, I have a lot of other management tasks so I am not waiting around all day for an invoice to be sent. But it's in no way an automatic payment if my signature is on it.
But Judge Ali is saying just pay it. Literally. Which is not at all how this works. Not defending the Trump crew, and they are not necessarily acting in good faith, but I can see the docket that they tried asking some reasonable questions to clarify the order, and the Judge kept ignoring them. It seemed like he was avoiding several basic issues to avoid grounds for appeal.
Each time I would read about how Trump avoided any legal consequences when he was in real estate (like, for not paying millions to contractors and small business owners), I would be both angered and disgusted by the failures of the judicial system. In the current situation with defunding (and gutting) USAid, the majority of legal experts I've seen interviewed have said this clearly violates the Impoundment Control Act of 1974.
But, once again when it comes to Donald Trump, the rule of law just doesn't seem to matter. I understand Prof. Vladeck's assertion that the Chief Justice's temporary pause was preferable to the alternative outcomes, especially if it allows for a "full Court ruling that gets Judge Ali’s back." But, as ProPublica and other media outlets have shown, the irreparable harm caused by the non-payments is not only happening, but is happening in much more than just a few cases. The damage is already jaw-dropping: widespread layoffs, cancelled contracts with vendors, and the shame this is bringing to America on the world stage.
I guess we will soon find out (maybe even in a few hours from now) what the Court will do. But, even if it surprises me and denies the stay and lets Judge Ali’s ruling go into effect, the damage has already been done.
Thank you for this, maybe, reassuring summary. I would note that, via my son who works for one of the NGO’s involved, the Government aka Peter Marocco spent most of Wednesday canceling the remaining contracts that were on the books in order to be able to at the very least plead that it would be impossible to restore funding so quickly and also just because they are cruel and want Americans working in foreign aid to lose their jobs and people to die. I would hope that at the very least the NGO’s would be able to present this sabotage of the payment system as evidence before SCOTUS for their malign intent
I wonder whether Roberts will back Trump simply because he is afraid that Trump will defy his order and he doesn't want the Court to appear impotent. He may be more concerned with maintaining the appearance of a co-equal branch of government than with maintaining democracy. If the Court rules against Trump, maybe some Republicans will grow a backbone.
I have no idea what Roberts thinks will happen if he lets the law apply to Trump but I sure hope he has learned how bad he is at predicting the results of his rulings.
Well, Justice Roberts HS certainly been wrong about some of his predictions about the real world consequences of his decisions, even where he considered them at all.
The Robert’s Court is a Disgrace.
They all should resign in favor of a Court selected by all Circuits alternating between a woman and a man until all Circuits are represented.
We will need a Constitutional amendment to limit the wisdom of the Court to 12 years.
Billionaires buying votes and deciding cases is over.,
Given the utterly incompetent coverage in the press, thank God you're posting.
The table has been set for this showdown-from the moment Trump stated "I-we-are the law". https://youtu.be/cO3GeFetnmI?si=wGOh8LkGVX1VZvXE
So if in the long run Roberts wants to re-litigate Marbury v. Madison, strike down the Impoundment Act of 1974 (I was literally around at that time and Congress passed it for reasons exactly like where we are now) he has his "marching orders". This court has had no qualms about striking down decades old precedent resulting in giving Trump what he wants-"L'etat-c'est moi", so we'll see how well this plays out if SCOTUS ends up neutering the separation of powers-whether in one fell swoop or bit by bit through piecemeal defiance of TROs around these executive orders.
I understand the legal merits of the stay and get the jurisdictional issues but perhaps Roberts could use some of that country coming together over his wise rulings by denying the administration the air of invulnerability from the courts.
The issue in the case was whether the U.S. could enter contracts with Congressionally appropriated funds, the third party contractors then performed the contractually required work and submitted their bill for payment. The Court entered an order requiring the U.S. to live up to its contracts and make payment. The Trump Administration refused to pay and were held in civil contempt and then an enforcement order was entered. In order to comply all the U.S. had to do was honor their contracts by making payment. The U.S. had no irreparable harm as appropriated funds were available. CJ Roberts administrative stay only confirms that the U.S. is an unreliable contract party.
Steve,
I really want to thank you for your hope honesty and humor reporting truth to power with evidence and history. We will find out soon i hope too. It will be raining this weekend but it may be time to rain our voices too. Peace. We are in this together.
I wonder if this bombardment of dubiously legal hack and slash spending cuts and freezes will ever end. Tangentially related, fellow readers, did you know Taiwan and South Korea were not real democracies until 1987? Taiwan basically had a slow roll of reforms from military dictatorship to democracy. South Korea had a student led peaceful revolution.
By the same logic, we didn't extend franchise (and arguably still haven't!) to everyone until VRA in 1965. This is simultaneously comforting and distressing.
An educational analysis, but I feel that Roberts should have erred on the side of Congress's authority of the purse and allowed for the contracted payments. It's a little like he's afraid of Trump and his goons. What a legacy.
“…the only conclusion Roberts’s order may reflect is that two extra days, however harmful they might be to some of the plaintiffs, will give the Court at least a little bit of time to make a principled, reasoned decision…”
And this is the playbook for the corrupt, wealthy and powerful. Any pain that can be inflicted on others is worth it. Any exploitation of the courts is worth it. Any refusal to abide by “norms” is worth it. It’s ALL a win.
I agree with you, Steve; it'll be the Goldilocks choice.
But, Trump is not a fan of the Goldilocks approach to jurisprudence. He's more of a scorched-earth kind of guy. And if it's going be the cynical path, he'll love it.
If SCOTUS gives him a sniff of stiffing creditors, Trump will take it and run.
Can you imagine what happens when good ole USA reaches the debt limit (after the GOP shuts down the government -- no 'waste, fraud, and abuse if you close the federal government) and Trump starts negotiating with our debt holders? The billionaaires will be shorting T-bills like crazy, Trump will cut a deal with debt-holding China and put a happy-meal face on it.
Trump and Musk had better get to Fort Knox quick, and spin that gold into DOGEcoin.
This analysis does a disservice to the reader and oversimplifies. Working in fed contracts for almost 30 yrs, I was struck by the fact that the text of the initial TRO and Judge Ali's Order Denying Motion To Stay Pending Appeal don't show any understanding of legally required invoice review . His orders are not anything any acquisition professional would be able to make sense of.
The Order yesterday literally says pay for "all work completed prior to February 13". That's a head scratcher.
Let's say I am the USAID CO or COR, and I got an invoice this morning for work on for the month ending on 2/12/2025 (it's very common to get an invoice weeks/months after work is completed). I am in contempt if I don't pay it in the next few hours. That's nuts.
The Prompt Payment act gives my agency 30 days for a contract to review and approve an invoice, and for grants (the vast majority of USAID spend) has their own payment terms, and since these are grants, the terms of the grant don't cede a lot of rights to the grantee.
I never pay an invoice a few hours after I get it, for me it's more like 10 days. Usually a COR would get an alert in the invoice processing system, then review the invoice line by line, compare it against the text of the contract, and match that invoice's expenses against a work plan and the spend plan, verify what funds remain on the contract, reach out to stakeholders to verify the tasks were completed, verify receipt of work products, ensure the costs are allocable, compare the invoiced costs against appropriate CLINs, etc. etc.. It's called due diligence and it's legally required.
Approving invoices is maybe 10% of my job, I have a lot of other management tasks so I am not waiting around all day for an invoice to be sent. But it's in no way an automatic payment if my signature is on it.
But Judge Ali is saying just pay it. Literally. Which is not at all how this works. Not defending the Trump crew, and they are not necessarily acting in good faith, but I can see the docket that they tried asking some reasonable questions to clarify the order, and the Judge kept ignoring them. It seemed like he was avoiding several basic issues to avoid grounds for appeal.
The Humpty Dumpty effect. Push him off the wall and it does not matter if the courts say to put him back on the wall.
Will the affidavit by Clara Doe in support of the TRO get before the Court? It’s devastating.
https://bsky.app/profile/rparloff.bsky.social/post/3lj63uaumak2q
Why haven’t they ruled yet??? They had no reason to take this clear cut case unless they wanted to f it up. Just like immunity the delay is BAD news
Each time I would read about how Trump avoided any legal consequences when he was in real estate (like, for not paying millions to contractors and small business owners), I would be both angered and disgusted by the failures of the judicial system. In the current situation with defunding (and gutting) USAid, the majority of legal experts I've seen interviewed have said this clearly violates the Impoundment Control Act of 1974.
But, once again when it comes to Donald Trump, the rule of law just doesn't seem to matter. I understand Prof. Vladeck's assertion that the Chief Justice's temporary pause was preferable to the alternative outcomes, especially if it allows for a "full Court ruling that gets Judge Ali’s back." But, as ProPublica and other media outlets have shown, the irreparable harm caused by the non-payments is not only happening, but is happening in much more than just a few cases. The damage is already jaw-dropping: widespread layoffs, cancelled contracts with vendors, and the shame this is bringing to America on the world stage.
I guess we will soon find out (maybe even in a few hours from now) what the Court will do. But, even if it surprises me and denies the stay and lets Judge Ali’s ruling go into effect, the damage has already been done.