Federal Government Withdraws Emergency Supreme Court Application Over Freezing of Foreign Aid

The move came after a federal appeals court formally halted an injunction that had forced the government to release funding approved by Congress.

The seal of the U.S. Department of State in Washington on Jan. 26, 2017. Joshua Roberts/File Photo/Reuters

The federal government on Aug. 29 withdrew an emergency request at the Supreme Court to give it control over billions of dollars in foreign aid after an appeals court cleared the way for the government to withhold the funding.

The case goes back to Jan. 20, when President Donald Trump issued Executive Order 14169 to freeze foreign aid spending for 90 days. Grant recipients and associations sued to free up the government funds, arguing that the president violated the federal Administrative Procedure Act and the Constitution.

The government had already won in a 2–1 ruling on Aug. 13 a challenge to the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, allowing it to freeze the funds. The panel found that the associations and grant recipients that sued to release the funds did not have valid legal grounds to bring a lawsuit in the case.

But as the panel did not issue what lawyers call a mandate, its ruling did not take effect immediately.

Instead, a Feb. 25 preliminary injunction issued by U.S. District Judge Amir Ali that required the foreign aid funds appropriated by Congress to be spent remained in effect after Ali denied the government’s request to formally stay his injunction.

However, on Aug. 28, the full circuit court amended its opinion and directed the court’s clerk “to issue the mandate forthwith,” or immediately, effectively dismissing the government’s appeal to the Supreme Court.

This allows the government to withhold the appropriated foreign aid funding.

Solicitor General D. John Sauer had said in an Aug. 29 filing with the Supreme Court that the government “faced irreparable harm should the injunction remain in effect beyond September 2, when the government would have to take potentially irrevocable steps to obligate funds expiring on September 30.”

Subject to the injunction are tens of billions of dollars, some $12 billion of which would need to be spent by the State Department before Sept. 30, when they expire. The government warned of the “irreparable harm” that it would incur in a prior court filing.

The injunction “will effectively force the government to rapidly obligate some $12 billion in foreign-aid funds that would expire September 30 and to continue obligating tens of billions of dollars more—overriding the Executive Branch’s foreign-policy judgments regarding whether to pursue rescissions and thwarting interbranch dialogue,” the filing stated.

The district court overreached here, appointing itself “as overseer of spending decisions,” the filing said.

Because the actions of the D.C. Circuit Court on Aug. 28 vacated the injunction, the government withdrew its emergency application to stay the injunction, Sauer said in the Aug. 29 filing.

Later on Aug. 29, the Supreme Court formally noted in the docket for the case, known as Trump v. Global Health Council, that the application had been withdrawn.

With the injunction dissolved, Trump submitted proposed rescissions, or formal cancellations, of $4.9 billion in appropriated foreign aid funding under the federal Impoundment Control Act.

The funds were allocated to the Department of State and the U.S. Agency for International Development, which is in the process of being dissolved by the Trump administration and merged into the Department of State during the fiscal 2025 appropriations process.

Under the Impoundment Control Act, the government must make a rescission request to Congress, which then has 45 days to approve the cancellation of appropriated funds. A “pocket rescission,” however, refers to such requests made within 45 days of the end of the federal fiscal year, which is Sept. 30. In such cases, the funds are withheld during the 45-day congressional review period, and if Congress fails to act before the fiscal year ends, the funds expire.

Pocket rescissions are uncommon, and the last one attempted was in 1983, when President Ronald Reagan sought to cut $2 million appropriated to the National Oceanic and Atmospheric Administration. Trump, during his second term, has successfully requested some rescissions from Congress. A rescissions measure canceling $9.4 billion in funding for foreign aid and public broadcasters was approved by Congress in July.

Rescission requests, when presented to Congress, may be enacted through legislation with simple majorities voting in favor in both houses, meaning that the minority has no leverage to stop or alter the process. Democrats in Congress, who are in the minority in both houses, have protested against Trump’s rescissions, often to no avail.

Melanie Sun and Arjun Singh contributed to this report.