Foreign Assistance is Not an Article II Power

One of President Trump’s first acts upon his return to the White House on Jan. 20 was to implement a 90-day pause on all U.S. foreign assistance and supported activities, subject to limited exceptions, while his administration conducted a review to ensure that “no further United States foreign assistance shall be disbursed in a manner that is not fully aligned with the foreign policy of the President of the United States.” After several weeks, two groups of U.S. implementing partners who had been set to receive those funds—and in some cases were owed funds for work already performed—brought suit in federal district court in Washington, D.C, on the grounds that they were suffering not just pecuniary losses but potentially irreparable organizational, operational, and reputational harm as a result of the sudden and unexpected disruption. The two resulting matters—AIDS Vaccine Advocacy Coalition (AVAC) v. Trump and Global Health Council (GHC) v. Trump—were joined before Judge Amir Ali. Just last night, another plaintiff launched a third lawsuit—National Endowment for Democracy v. United States—advancing several similar arguments.

On Feb. 13, Judge Ali issued a temporary restraining order (TRO) directing the Trump administration to make payment for all work completed up to that date, limiting further irreparable harm until the broader legal challenge can be adjudicated. Instead of complying, the Trump administration has spent the weeks since brazenly disregarding this order. Through a combination of implausible legal arguments and deliberate misreadings of the court’s directions, the government has continued not only to suspend almost all the foreign assistance in contention but also to complete the review directed by Trump and permanently cancel many of the foreign assistance agreements that had been in place with the plaintiffs and other implementing partners. When the district court called the government out on its dissembling and unequivocally reiterated the need for compliance last week, the government instead sought an emergency appeal, first to the D.C. Circuit and then to the Supreme Court. While both efforts have since failed, it remains to be seen whether and when the government will finally come into compliance. Meanwhile, the district court is set to hold a hearing later today on the merits of the plaintiffs’ request for a broader and more enduring preliminary injunction. 

The plaintiffs contend that the Trump administration’s actions should be set aside as unlawful under the Administrative Procedures Act (APA), on the grounds that they violate both the Constitution and related statutes, including the legislation through which Congress appropriated the paused or canceled funds and specified their use. The Trump administration in turn maintains that all the foreign assistance agreements at issue either expressly or implicitly permit for unilateral suspension and cancellation by the executive branch. It also maintains that the present plaintiffs lack standing to pursue claims for anything more than their individual financial harm, which should in turn be channeled through separate administrative procedures that can result only in monetary damages, not injunctive relief. More recently, the Trump administration has also asserted that, because Secretary of State Marco Rubio has completed his review of the foreign assistance programs at issue and taken steps to cancel most of them, the original suspension has been lifted and the plaintiffs’ legal challenge is moot.

Lying behind these more technical arguments, however, is a much bolder constitutional claim: that “the President’s powers in the realm of foreign affairs are vast and generally unreviewable[,]” and that his chosen disposition of U.S. foreign assistance is thus beyond the reach of Congress or the federal courts.

This is not the first time that the Trump administration has invoked a broad vision of the president’s foreign affairs powers to further its policy objectives. But relying on such an extraordinary assertion in the present context is particularly aggressive, as foreign assistance is one aspect of U.S. foreign policy that has long been understood to be under the constitutional authority of Congress, not the executive branch. Accepting the Trump administration’s contention, either directly or tacitly, risks turning the traditional separation of powers on its head and may well invite further executive branch intrusions into Congress’s own constitutional authority over foreign affairs.

Foreign Assistance and the Constitution

The Constitution does not squarely address who is responsible for managing foreign assistance. But the same can be said of foreign affairs more generally. Article II makes the president commander in chief of the military, gives him the authority to receive foreign diplomats and negotiate treaties (the latter with cooperation from the Senate), and vests in him the undefined but capacious-sounding “executive Power”—a constellation of authorities that have come to be understood as giving the president the lead role in managing the country’s foreign relations. But many of the specifically enumerated powers that Article I provides to Congress relate in substantial part to foreign affairs, belying any suggestion that all matters beyond the borders are exclusively within the president’s authority. As a result, even as it has accepted the president’s lead role in conducting and communicating the nation’s foreign relations, the Supreme Court has generally maintained that the political branches share authority over the substance of U.S. foreign policy. “The first principles in this area are firmly established[,]” Chief Justice Roberts once wrote. “The Constitution allocates some foreign policy powers to the Executive, grants some to the Legislature, and enjoins the President to ‘take Care that the Laws be faithfully executed.’"

Where there is uncertainty as to which political branch has constitutional authority over a given aspect of U.S. foreign policy, the modern Supreme Court generally applies the framework Justice Jackson set forth in his 1952 concurrence in Youngstown Sheet and Tube v. Sawyer, which treats “Presidential powers a[s] not fixed but fluctuat[ing], depending upon their disjunction or conjunction with those of Congress.” Under this framework, the president can act in areas where he lacks clear constitutional authority, but only where Congress is supportive or at least silent regarding the president’s actions. By contrast, the president’s power is at its “lowest ebb” when acting contrary to the express or implied will of Congress, as he can only do so where he has exclusive constitutional authority—and any such claims of “conclusive and preclusive” presidential authority, Justice Jackson warned, “must be scrutinized with caution” for fear of undermining “the equilibrium established by our constitutional system.”

Foreign assistance, however, has never been the subject of such ambiguity. Instead, it has always been seen as a natural extension of Congress’s constitutional authority “[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” under what is known as the Spending Clause. As the Supreme Court has described in prior foreign assistance cases, this clause “provides Congress broad discretion to tax and spend for the ‘general Welfare,’ including by funding particular state or private programs or activities.” And for decades the Supreme Court has maintained that “Congress’ power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use” through the imposition of related statutory requirements, subject to certain limitations. Importantly, as Zachary Price recently wrote for Lawfare, these requirements have come to include statutory measures—specifically, the Anti-Deficiency Act and Impoundment Control Act—that reinforce Congress’s own constitutional authority to dictate the terms of federal spending by setting tight limits on when and how a president can either act without specifically appropriated funds or refuse to spend (or “impound”) funds once appropriated for a specific purpose.

Foreign Assistance in Historical Practice

Historical practice confirms Congress’s central role in establishing U.S. foreign assistance policy. When President Madison wished to provide what is believed to have been the first ever tranche of U.S. foreign assistance to aid Venezuela with earthquake relief in 1812, he did so only after securing express statutory authorization and a related appropriation from Congress. Subsequent presidents similarly had to turn to Congress when implementing the Marshall Plan of the 1940s, the Food for Peace program of the 1950s, and other major U.S. foreign assistance efforts. In each case, while the executive branch played a central role in implementing the resulting programs, it was only within parameters set by Congress, which retained the ability to appropriate and set conditions on the use of federal funding.

Since 1961, most U.S. foreign assistance has been governed by the Foreign Assistance Act (“FAA”), a frequently amended framework statute that provides the executive branch with a number of standing foreign assistance authorities. Several give the president and other executive branch officials a substantial degree of discretion in determining how various funds are used, subject to congressional notification and certain other requirements and limitations. But foreign assistance is still only made available by virtue of regular authorization and appropriations legislation, which both appropriate the necessary funding and, in recent years, provide a waiver of reauthorization requirements that allows the executive branch to continue to rely on the FAA. This legislation generally identifies how much is to be spent for what purpose while imposing other statutory constraints and limitations, setting outer parameters on how the executive branch can use the discretion provided to it by the FAA and other authorities. The executive branch has the opportunity to help shape these laws by virtue of the annual budget requests it submits to Congress. But one need only look at the often substantial discrepancy between what the president requests and what Congress ultimately provides to understand which of the two political branches is in the driver’s seat.

None of this is to say that the president’s authority over foreign affairs is entirely irrelevant to foreign assistance policies. Even Justice Jackson acknowledges that the president may be entitled to heightened deference on foreign affairs matters, including in its interpretation of statutes. In the foreign assistance context, such deference is a natural complement to the discretion that Congress often gives to the executive branch in implementing the foreign assistance policies that legislators choose to fund. Together, they permit the executive branch to adapt to changing global conditions and better incorporate Congress’s foreign assistance priorities into its broader strategy to advance U.S. national interests. But if allowed to go too far, such deference can quickly become an intrusion upon the constitutional authorities of Congress—exactly what the plaintiffs argue is at risk in the litigation over President Trump’s foreign assistance freeze.

What Comes Next

The Trump administration is well aware of this past practice. During President Trump’s first term in office, his administration repeatedly proposed dramatic cuts to foreign assistance, only to be rebuffed by Congress, even when it was under Republican control. Having failed to persuade Congress in the past, the administration is now attempting to bypass it altogether through presidential action. And by doing so in the face of existing appropriations and legislation, it is arguably making the exact sort of “conclusive and preclusive” claim of presidential authority that Justice Jackson once warned against.

AVAC v. Trump and GHC v. Trump are poised to subject this claim (among the government’s other arguments) to judicial review, though whether the scrutiny will rise to the level recommended by Jackson remains to be seen. Now that the Supreme Court has rejected the government’s motion to vacate the district court’s TRO enforcement order, Judge Ali has instructed the parties to come to agreement on a schedule for compliance by later this morning. And this afternoon he is scheduled to hold a hearing on the plaintiffs’ motion for a preliminary injunction, which he seems likely to try and resolve before the TRO is set to expire on Mar. 10.

Judge Ali’s willingness to issue a TRO that restores all suspended foreign assistance for work completed prior to Feb. 13, not just that portion owed to the plaintiffs, suggests that he is sensitive to the constitutional and statutory concerns they raise and believes that he has the jurisdiction necessary to reach them. But this evaluation may change as the parties brief and argue the merits more fully. Moreover, even a decision on these legal lines may not result in the full restoration of the pre-Jan. 20 scope of foreign assistance activities that plaintiffs are seeking. While it seems highly unlikely that the president enjoys the almost universal authority to suspend or cancel existing foreign assistance agreements, he may well have the authority to do so in some cases. Even where he does not, limiting and reframing periods of suspension and redirecting (as opposed to simply withholding) affected foreign assistance may allow the Trump administration to mitigate at least some constitutional concerns. All told, the diverse array of funds and activities implicated by the Trump administration’s actions seem unlikely to lend themselves to a uniform resolution.

In addition, however the district court eventually may rule, the D.C. Circuit Court of Appeals and Supreme Court may not agree on appeal. That said, the latter’s recent decision relating to Judge Ali’s TRO offers at least some tea leaves as to its views. 

The four conservative justices who dissented from the Court’s recent decision seem inclined to view the plaintiffs’ requested relief as “more closely resembl[ing] a compensatory money judgment rather than an order for specific relief.” In their view, this is something that should be addressed through a claim for “‘specific sums already calculated’ and ‘past due’ in the Court of Federal Claims[,]” not injunctive relief under the APA. (They also maintain that the latter is barred by reason of sovereign immunity, though—as Steve Vladeck points out—some case law arguably points in the opposite direction.) Moreover, the dissenters’ assertion that the district court should have limited its relief to the plaintiffs’ “allegedly owed funds and pay out only to them” hints that they may also view the plaintiffs as lacking standing to pursue claims over more than their own pecuniary harms.

But a five justice majority consisting of all three Democrat-appointed justices as well as Chief Justice Roberts and Justice Barrett appears to have rejected this reasoning, at least at the present stage. At a minimum, this seems to indicate that they are less inclined to pursue such a dodge of the underlying constitutional (and statutory) issues and may be more willing to address them on the merits. Nor would this be entirely surprising, as Roberts, at least, has spoken out in defense of Congress’s authority over foreign affairs in the past. (Though so have Justices Alito and Kavanaugh, both of whom dissented.) Of course, things may again look different if and when the dispute returns to the Court on the merits.

Perhaps unsurprisingly, the dissenters’ opinion tracks several of the arguments put forward by the government. And some federal judges may well find them tempting as a means of avoiding the more difficult constitutional questions likely to be raised by fuller APA review. Adopting this position, however, would leave the president’s intrusion upon Congress’s authority in place, at least so long as the government is willing to duly compensate the plaintiffs for resulting pecuniary harms. This wouldn’t be a vindication of Trump’s broad claim of presidential authority over foreign affairs—indeed, it’s not clear any justice is eager to endorse that particular understanding of the separation of powers. But by declining to provide the current plaintiffs (and most likely any plaintiffs) with a means of remedying the Trump administration’s actions, the dissenters’ approach would leave their real-world consequences in place. And that seems like a trade-off the Trump administration would be willing to make.

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Whatever the ultimate outcome, the Trump administration’s claim of broad presidential authority over foreign affairs is unlikely to end with foreign assistance. Jean Galbraith has documented how the executive branch has gradually expanded what it views as the scope of the president’s foreign affairs power in recent years. During Trump’s first term, his Justice Department used such an argument to justify his withdrawal from treaties, in spite of statutory limitations. And as Elena Chachko and I recently described for Lawfare, we have already seen the second Trump administration use a similar claim to bolster its efforts to exercise control over diplomats and civil servants at foreign affairs agencies, despite statutory protections.

One can easily imagine Trump deploying a similar claim of presidential authority to, for example, overcome statutory limitations on his authority to impose tariffs. And even if the federal courts prove unwilling to legitimate such an intrusion on Congress’s authority over foreign commerce, this may not mean much if they do not allow for a legal mechanism to push back on the actual policy changes the Trump administration is using its claim of authority to implement. This may in turn require that the federal courts overcome some of their traditional reticence to involve themselves in foreign affairs and conflicts between the political branches. If they do not, the result might be a de facto separation of powers that looks very different from the one we’ve known thus far.