from the the-only-thing-stunning-here-is-the-hypocrisy dept
Here’s a puzzle: When does a Supreme Court justice believe courts can review executive branch decisions? The answer, at least for Justice Alito, appears to be “whenever a Democrat is president, but only then.”
There is plenty of commentary making the rounds regarding yesterday’s 5-4 Supreme Court decision confirming that of course a judge can issue a Temporary Restraining Order to maintain the status quo and require USAID pay out the money that it owes to contractors for work already done. But beneath the straightforward legal question lies a revealing pattern of inconsistency from some of the Court’s conservatives.
The eye-opening thing about Alito’s dissent is how completely it contradicts positions he took just months ago. And not in subtle ways — we’re talking about fundamental questions of judicial power that Alito seems to view entirely differently depending on which party controls the White House.
To understand this claim — and how there’s basically no other explanation — we need to look at what actually happened here. Elon Musk and his DOGE crew went into USAID and halted nearly all payments, which created an interesting legal problem that had been mostly theoretical prior to the current administration. Congress has “the power of the purse” and requires the executive branch to spend money as directed. Not spending appropriated money (known as “impoundment”) is pretty clearly illegal.
While this has kicked off a bunch of lawsuits, the one at issue here involves two contractors — AIDS Vaccine Advocacy Coalition and the Global Health Council — who pointed out that they already completed the work for which they have contracts, and they are owed money on those contracts. Musk freezing the payouts violated the law.
The judge in the District Court, Amir Ali, agreed that this seemed like a pretty big issue and issued a Temporary Restraining Order. TROs are supposed to be used in rare situations, mainly to return things to the status quo to avoid irreparable harms. In this case, contractors not getting paid by the US government for work they already performed, on contracts and appropriations already blessed by Congress and the executive branch, could do real damage. And thus, Ali ordered them to proceed to abide by the contracts and the constitutionally required situations in which the executive branch does, in fact, pay out the money that Congress has appropriated.
However, after doing so, the White House ignored the order and did not pay out the money. Judge Ali brought the DOJ back into court two weeks later to ask WTF, followed by issuing an order that they pay out the money they owed by that very night. This is when the DOJ tried to appeal, which quickly bumped its way up to the Supreme Court. With little time to spare, Chief Justice Roberts issued an “administrative stay” on the TRO, basically putting it on hold.
This administrative stay created an oddity worth examining. The whole point of both TROs and administrative stays is generally to “preserve the status quo” while the court can look at things more closely. But which status quo? The one where the government follows the law and pays its bills to contractors who already did the work? Or the one where Musk’s DOGE team is illegally impounding funds denying lawfully contracted work from being paid for? It sure feels like the former is the only status quo worth preserving.
After sitting on the issue for nearly a week, the Court finally ruled 5-4 in support of Judge Ali’s basic position, though they told him to come up with a new implementation plan since the original payment deadline had passed. But the really appalling part isn’t the majority ruling — it’s Alito’s dissent, which reads like it was written in an alternate universe where a bunch of other opinions, many of which Alito supported, don’t exist.
Alito’s dissent starts with what might charitably be called selective amnesia, both of the facts of this case, as well as recent Supreme Court jurisprudence that he supported:
Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned.
Stunned, are you?
Let’s pause here and note what Alito is doing. He’s framing this as a question of judicial power over executive spending. Which would be a reasonable framing, if not for two rather enormous elephants in the room: First, Congress has already directed this spending, as its power under the Constitution. Second, Alito himself has repeatedly insisted that courts must enforce such congressional directives against presidential overreach — at least when Democrats are in office.
Look, I know some people (including Chief Justice John Roberts) will get mad that I suggest Alito is an extreme partisan, but that paragraph, combined with some recent rulings that went in the other direction when Joe Biden was President, seem to make it pretty clear that Alito’s guiding philosophy is “When Republicans are in power, the president is a king; When Democrats are in power, presidents have no power at all.”
Let’s call out two previous rulings, both written by the Chief Justice, but to which Alito readily signed on. First was Biden v. Nebraska, the case in which the Supreme Court said that the President has no authority to cancel student loan debt without an act of Congress. In that case, the Court repeatedly made clear: the executive branch has zero authority to reinterpret or ignore an act of Congress, especially involving funds.
As Roberts wrote in that case, and which all of the Justices in the dissent on yesterday’s case agreed to:
The dissent is correct that this is a case about one branch of government arrogating to itself power belonging to another. But it is the Executive seizing the power of the Legislature
Fast forward to the present USAID case, and suddenly Alito is “stunned” that a district court would prevent the Executive from seizing Congress’s power of the purse. The contradiction couldn’t be more glaring.
So, in the student loan case, Alito, Thomas, Gorsuch and Kavanaugh were insistent that the executive branch may not “seize power” from the Legislature. The same ruling also stated:
Among Congress’s most important authorities is its control of the purse. U. S. Const., Art. I, §9, cl. 7;… It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.
And yet in the current case, these same justices suddenly find it “stunning” that a court would enforce Congress’s power of the purse against executive overreach. Did Alito and the others just forget the Biden case?
Or how about this part of that same ruling:
… our precedent— old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy.
Does that not apply equally in this case? Then why is Alito somehow stunned that the lower court made the same ruling that Alito agreed to less than two years ago?
Okay, so maybe that’s too far back in history. Let’s consider last summer’s ruling in the Loper Bright case, that got rid of Chevron deference. This case was also about separation of powers and whether the judiciary has the right to step in and overrule the executive branch.
In this case, which again came out just months ago, Alito enthusiastically endorsed the judiciary’s authority to check executive power. Yet now he’s “stunned” that a district court would enforce congressional appropriations law against executive impoundment. Even more tellingly, Alito’s dissent summary in his opening paragraph strategically omits crucial facts — that Congress had appropriated these funds, contracts were signed, and work was completed — instead framing it as a judge arbitrarily “compelling” government payment.
Stunning! But not the way Alito thinks. It’s Alito’s blatant partisanship that should be seen as stunning.
In Loper Bright, the conservative wing of the Supreme Court was unanimous that the judiciary must always check the executive when it exceeds authorities granted by Congress. In that ruling, which again Alito joined, Roberts emphatically made clear that the judicial branch is the interpreter of the laws:
The Framers also envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” Id., No. 78, at 525 (A. Hamilton). Unlike the political branches, the courts would by design exercise “neither Force nor Will, but merely judgment.” Id., at 523. To ensure the “steady, upright and impartial administration of the laws,” the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches. Id., at 522; see id., at 522–524; Stern v. Marshall, 564 U. S. 462, 484 (2011).
This Court embraced the Framers’ understanding of the judicial function early on. In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). And in the following decades, the Court understood “interpret[ing] the laws, in the last resort,” to be a “solemn duty” of the Judiciary. United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J., for the Court). When the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.”
And, as the ruling (again, I need to stress, this was from just a few months ago) states, the Judiciary often has to say no to the Executive:
The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge “certainly would not be bound to adopt the construction given by the head of a department.” Decatur, 14 Pet., at 515; see also Burnet v. Chicago Portrait Co., 285 U. S. 1, 16 (1932). Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in cases where [a court’s] own judgment . . . differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.”
Alito signed on to that opinion just months ago. And now he’s “stunned” that a judge is, indeed, independently determining that the executive branch is violating the law.
There’s a broader point here worth considering. The Supreme Court’s role in our constitutional system isn’t just about deciding individual cases — it’s about establishing clear, consistent principles that lower courts and other government actors can rely on. When those principles shift dramatically based on which party controls the White House, it undermines the entire project of constitutional law.
Consider what message this sends to lower court judges. If you’re a district court judge facing an executive branch that’s defying Congress by refusing to spend appropriated money, what are you supposed to do? Follow the guidance from the student loan case that says you must vigorously check executive overreach? Or follow Alito’s (thankfully minority opinion for now) guidance from yesterday that says you should be “stunned” at the very idea of telling the executive branch how to spend money?
The answer, apparently, is to check the party affiliation of the current president first. Which is exactly the kind of outcome the Founders were trying to avoid when they created an independent judiciary.
But there’s an even more troubling aspect to all this. By making such nakedly partisan distinctions, Alito and his colleagues are effectively creating two different constitutions: one that applies when Democrats are in power (featuring strict separation of powers and aggressive judicial review) and another for Republican administrations (featuring expansive executive authority and judicial deference).
This isn’t just about Alito being inconsistent. It’s about whether we can maintain any coherent theory of constitutional law when Supreme Court justices treat identical legal questions differently based purely on partisan considerations.
What we’re witnessing is not principled judicial philosophy but raw partisan power dynamics. The judicial doctrines these justices claim to revere — textualism, separation of powers, judicial independence — appear to be selectively deployed based on who occupies the White House. The message couldn’t be clearer: Republican presidents deserve kingly deference, while Democratic presidents require constant judicial constraint.
Which brings us back to Chief Justice Roberts, who continues to insist it’s unfair and inappropriate to suggest his colleagues might be motivated by partisan considerations rather than consistent legal principles. Perhaps he’s right that we shouldn’t question the motives of Supreme Court justices. But when those justices write opinions that directly contradict their own recent precedents based on nothing more than which party holds the White House, what other conclusion are we supposed to draw?
Filed Under: appropriations, congress, loper bright, power of the purse, samuel alito, separation of powers, student loans, supreme court, usaid
