(h.t. to Mark W. Smith of the Four Boxes Diner here and here.)
Welcome to your chance to nerd out on the difference between process and merits in legal actions. Our case of interest is AIDS Vaccine Advocacy v. Department of State. For non-lawyers, this is the case challenging President Trump’s order to freeze all payments from USAID until they can be fully reviewed for compliance with the law and the administration’s policies. If your claim has merit, it will be paid. If not, pound sand. And if you think you’re owed money that the government says they won’t pay, you can go to the Court of Federal Claims. The District Court does not have jurisdiction to hear you. Nor does it have the power to order anyone to pay you.
After Donald Trump was elected, on December 2, 2024, Joe Biden hustled (I think that means he shuffled less slowly…) to appoint Amir Ali, a reliable left-wing lawyer, to a seat in the reliably left-wing District Court for the District of Columbia, a reliably left-wing locale. Ali had barely gotten his chair adjusted when the USAID case landed on his desk. The plaintiffs asserted Administrative Procedure Act violations as a lever to pry a bill payment case into the wrong court. Supreme Court Justices Alito, Gorsuch, Thomas, and Kavanaugh emphatically pointed this out. The fact that Justice Barrett didn’t join them has led to unsubstantiated charges that she’s turning to the left.
Image by Mark Popovich. Public domain.
To explain, you’re going to need a little more background. On January 20, President Trump ordered a 90-day pause on all foreign aid payments. This case started on February 10 in a case assigned to Judge Ali that was later consolidated with a different case filed on February 11 with Judge AliKhan. On February 13, Judge Ali issued a Temporary Restraining Order (“TRO”) against Trump’s funding pause.
Brace yourself. Here’s where things get nerdy.
TROs are very short-term orders that basically order the parties to “stand still.” The court doesn’t yet know who’s right, although it’s inclined to think that the petitioning party might be right or that the egg might be so badly scrambled by the time the case is finally resolved that a “stop everything” order is proper. It’s designed to keep any disputed activity from happening until everything is figured out.
Ali’s order, however, was different. It didn’t stop everything. Instead, it only stopped Trump’s funding pause, therefore requiring money to be paid (which money may never be recovered), and reversing a presidential order that already told USAID to “stand still.” When you figure out how a presidential order that already freezes things in place can be reversed by a Court order that freezes things in place, let me know. I’m sure the Mad Hatter will appreciate an explanation.
At the February 18 status conference, the government stated that the review process for each payee was continuing, and that the order presented a significant number of statutory ambiguities. Also, because the order presented substantial logistic problems, it was impossible to make any payments by the 18th. Despite this, upon the plaintiffs’ motion, Ali insisted that his earlier ruling was to be enforced. In his order, he stated that “Plaintiffs had satisfied their demanding burden for temporary injunctive relief.” Oops! This was a TRO, not a temporary injunction. TROs aren’t ordinarily appealable, but TIOs are. Which was this?
By the 24th, USAID had not paid anything. The next day, Ali issued an order mandating that USAID comply within 48 hours. The government immediately filed a motion with Ali for a stay pending an appeal on the merits. That was summarily denied.
The government then filed an appeal in the United States Court of Appeals for the District of Columbia (“DCCA”). However, because it was filed a mere four hours before Ali’s deadline, it dismissed the appeal.
The DCCA, however, made things clear for an appeal to the Supreme Court. TROs are supposed to preserve “the status quo ante” (that is, the situation up to the point of the order). But the status quo ante was the temporary freeze that Trump had imposed, not Ali’s mandated payments.
Because the government’s appeal made it clear that the TRO “go[es] beyond preserving the status quo ante and impose[s] “serious, perhaps irreparable consequences” that ruling can be effectually challenged only by immediate appeal. Once denied, there was a controversy for Chief Justice Roberts to resolve. And about an hour after the DCCA said “No,” Roberts put everything on hold for a conference the day after the deadline expired.
Because the TRO had expired by the conference on the 28th, the government could ignore it. It was now a dead letter awaiting the Supreme Court’s analysis. On March 5, the Supreme Court dissolved the stay, leading to a strenuous objection from four justices. And here’s where we get to distinguish between process and merits.
The dissenters all argued that the process was wrong. First, the plaintiffs were in the wrong court. The District Court has no authority to order that the government pay a debt. All of the back and forth was the wrong procedure (likely abetted by a newbie judge who was strongly left-leaning). The substance of the dispute (aka the “merits”) had this judge “infring[ing] on the executive branch’s authority and stands on the brink of placing USAID into a court-run receivership.”
In short, Judge Ali was wrong on both how the case was handled (process) and in the orders he gave to implement his errors. He did not act in accordance with Article II, § 1 of the Constitution. Since the President has all executive authority, managing USAID is his job, not the court’s. The merits demand his ultimate reversal. Until then, this anti-constitutional leftist will have to muddle through more process while DOGE continues its work.
As for Justice Barrett’s supposed “squishiness,” we can relax for the moment. When the DCCA heard the appeal from the stay order, there actually was no order to disburse funds since the TRO had expired. She didn’t sell us out. Rather, she went along with an institutional distaste for reaching the merits of a case until it is fully developed by lower courts. She accepted a “process” excuse (as she frequently does) to punt it back for more briefing, hearings, and so on.
To quote Mark Smith, “Now you are the smartest person in the room.”
Ted Noel is a retired physician who posts on social media as Doctor Ted. His Doctor Ted’s Prescription podcast is available on multiple podcast channels.
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