Supreme Court Renews Trump’s Foreign Aid Freeze Pending Hearing. Who Controls Foreign Policy? The President Or District Courts?

Robert RomanoFebruary 28, 2025

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U.S. Supreme Court Chief Justice John Roberts on Feb. 26 temporarily reinstituted President Donald Trump’s Jan. 20 freeze of foreign aid pending a hearing of the case by the Supreme Court, lifting a U.S. District Court order that the payments continue in spite of Trump’s freeze.

At issue are $2 billion of payments that were to be sent out but never were. The plaintiffs, the AIDS Vaccine Advocacy Coalition and other organizations, claim that the payments were for services already rendered.

Under the Jan. 20 Trump executive order, departments and agencies were to stop all “new obligations and disbursements”: “All department and agency heads with responsibility for United States foreign development assistance programs shall immediately pause new obligations and disbursements of development assistance funds to foreign countries and implementing non-governmental organizations, international organizations, and contractors pending reviews of such programs for programmatic efficiency and consistency with United States foreign policy, to be conducted within 90 days of this order.”

The review of foreign aid was ongoing at the time of the U.S. District Judge Ali Amir for the District of Columbia’s Feb. 13 ruling ordering that the payments resume.

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In filing to the Supreme Court, Acting Solicitor General Sarah Harris noted that the district court was essentially ordering the State Department to write a blank check without any chance to review any of the payments in question: “The order does not limit its abrupt deadline to respondents’ own invoices or letters of credit, instead apparently compelling the government to pay requests from any organization that has asked for such funds. Those requests are not even in the record, nor are the underlying instruments. The timing of the order does not allow the government to conduct payment-integrity review to ensure that payments are made only for obligations that are legitimate or supported by necessary documentation—much less deny improper payments. The timing of the order does not even let the government ascertain whether the sums are actually due or owing under the terms of the instruments.”

Harris added, “The timing of the order is particularly difficult because, based on the district court’s other orders, the government has been expediting review of thousands of foreign-aid grants and contracts to decide which contracts are in the interests of the United States to terminate and which should be retained.”

In other words, the district court’s ruling would just obligate the State Department to pay whoever asks for money, regardless if it was a qualified or legal expense, or if it was properly vetted.

Harris warned the Supreme Court that the district court’s ruling “effectively allows a single federal district court to supervise the federal government’s contracting decisions regarding foreign aid—an area where the Executive Branch ordinarily has the broadest discretion.”

And here is the key point. Since Jan. 20, former President Joe Biden — whose administration approved the contracts in question — is no longer in office, and President Donald Trump now is. Under Article II, Sec. 1 of the Constitution, “The executive Power shall be vested in a President of the United States of America.”

And Presidents absolutely set American foreign policy, whether in negotiating new treaties or in terminating old ones—see George Washington’s 1793 Proclamation of Neutrality to obviated the U.S. military treaty with France when it went to war. Other terminated treaties have included the Anti-Ballistic Missile Treaty and the Intermediate Nuclear Forces Treaty among others.

Are we to believe that the President can terminate treaties — which required two-thirds of the Senate to approve — including those that established military alliances, but that he cannot terminate foreign aid to countries who might no longer be considered allies by the President?

There is a separate question about whether the payments were for services already rendered, but as Solicitor General Harris noted that the U.S. has sovereign immunity from such a case as the district court was not even the proper venue, stating that the federal Court of Claims was the proper venue, “the district court lacked any jurisdiction even to issue this order dictating contractual payments by a date certain to remedy purported contractual breaches. The federal government has sovereign immunity from this type of breach-of-contract claim everywhere but the Court of Federal Claims.”

Here, Harris cited 28 U.S.C. Sec. 1346(a)(2), which explicitly states, “the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages…”

Meaning, the district courts slapping injunctions on spending freezes related to federal contracts are likely overstepping their jurisdiction. If there are any claims, they are to be directed to the U.S. Court of Claims, but even then, those still must be squared with Article II’s vesting clause of executive power in the President, particularly as it relates to national security and foreign policy.

If the President says not to continue a treaty or to send foreign aid, that might be the final word on the subject.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.

Cross-posted with The Daily Torch

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