Lawfare Daily: What Is Happening with USAID?

[Intro]

George Ingram: The human impact of this, this freeze and beyond that, the impact on U.S. image around the world, because the impact on U.S. foreign policy and how we're perceived around the world is a big question mark as to whether or not we're a reliable partner.

Scott R. Anderson: It's the Lawfare Podcast. I'm senior editor Scott R. Anderson with my Brookings Institution colleagues George Ingram and Tony Pippa, both senior fellows in our Global Economic and Development Program, and Jonathan Katz, senior director of the Anti Corruption Democracy and Security Project, all of whom are also alumni of the U.S. Agency for International Development, or USAID.

In a live recording on Feb. 3, we sat down to discuss the unprecedented events that have been playing out regarding U.S. foreign assistance and USAID over the past several days, including the possibility that the Trump administration may be shutting USAID down altogether.

George Ingram: Those bureaucrats are American assistants who are there to advance the interests of the United States. And it's criminal to attack these people who are trying to do the people's work.

[Main podcast]

Scott R. Anderson: Hi, everyone. Thank you all so much for joining us today. My name is Scott R. Anderson. I'm a senior editor here at Lawfare.

We have seen a really, really tumultuous two weeks for the U.S. Agency for International Development and really for foreign assistance in the United States as a whole. And that culminated in some pretty dramatic developments these past few days, including the shutting down of USAID's website, the closing of its offices, and just in the last few hours the announcement that Secretary of State Marco Rubio is going to be acting as the acting administrator, at least for the foreseeable future.

It has been, a lot of these issues, a lot of these developments have gotten maybe not quite as much attention as one might think given the flood of news we have seen on a lot of fronts. But we think they are interesting and problematic enough, both from a legal perspective and a policy perspective that we wanted to spend a session talking it over both on the podcast and as a livestream with you joining us here today on the live stream.

This is a podcast. We're going to have an edited version coming out tomorrow. But for the sake of the live stream, let me introduce our phenomenal panelists, all of whom are colleagues of mine here at the Brookings Institution.

We have George Ingram, the senior fellow in the Global Economy and Development Program here at Brookings, also a former Principal Deputy Assistant Administrator at USAID and a veteran of several implementing partners of USAID. We also have Jonathan Katz, senior director of the Anti-Corruption, Democracy, and Security Project here in Governance Studies at Brookings, also a former deputy assistant administrator at USAID and a veteran of Capitol Hill in various regards that relate to foreign assistance. And finally, we have Tony Pipa, also a senior fellow in the global economy and development program, former chief strategy officer at USAID among another, a number of others in your position has worked in development world and a number of other capacities.

To start things off on this conversation, George, I want to come to you first. I, I think it's fair to say. The trouble around USAID and foreign assistance really started on inauguration day. That's the day we saw an executive order issued by President Trump, essentially ordering a 90 day pause in foreign assistance disbursements, any sort of activities pending review for compliance with America First foreign policy that he laid out on that day and a series of other documents.

We saw that implemented by the State Department, particularly from F Bureau a few days later through a cable to all posts, essentially said issue, stop work orders, stop disbursements with very limited exceptions. We then saw Secretary of State Rubio a few days later, issue a slightly broader number of exceptions for essential, life-saving assistance of various stripes. But what exactly that has meant has been a little complicated.

Talk to us a little bit about the current scope of the foreign assistance freeze as we know it and the impact it has had and is having on the delivery of foreign assistance around the world.

George Ingram: Well, the question of what is, what is the scope of the foreign assistance freeze is a question that's being asked by everybody in the development community in the United States and across the world, including by our, our partners around the world.

And two weeks after it was implemented, we don't have a clear answer. I think you have to start with the assumption that most foreign aid has been frozen—a combination of the freeze and the stop work order.

At first, freeze, there was a carve out for military assistance for Israel and Egypt—military financing—and that is managed by the State Department and the Defense Department, not by USAID. Beyond that, there's a carve out for humanitarian life saving purposes and food aid. There's been no guidance on what that means and what that covers. And more recently, there was a carve out for PEPFAR. That's fairly clear.

But what we don't know is how those carve outs are being executed, because there's no guidance on any of it. And at this point, a lot of the employees of USAID have been sent home, so there's nobody there to receive requests for exemptions. They go to the State Department now, to one office there, the Office of F. And for the most part, we haven't seen what's, what's been coming out of there so that it's a gigantic question mark.

And the impact extends from all of our assistance programs in Ukraine that are helping to sustain the Ukrainians and their existential threat from Russia. It extends to de-mining activities around the world, just at a time when some countries' farmers are trying to get back into their fields and want those mines gone to initially PEPFAR not being able to deliver life saving pharmaceuticals.

And I could go on and on, and there have been some good articles in the Washington Post and the New York Times elaborating on what the human impact of this, this freeze is, and beyond that, the impact on the U.S. image around the world. Because the impact on U.S. foreign policy and how we're perceived around the world is a big question mark as to whether or not we're a reliable partner.

Scott R. Anderson: So let me push a little deeper in this because you've got a really unique perspective coming both from USAID as well as from implementing partners, the groups that work with USAID, to work with making sure this money actually does the things we want it to do, it's designated to do.

How does a sudden freeze impact the operations of those companies and organizations doing that work in the field, those partners? It is unusual. I'm not aware of there being a sudden, broad, across the board freeze of this sort. implemented in the past—although perhaps I'm not aware of that, people can correct me.

Part of the reason is because it strikes me as it is a difficult thing to integrate with the sort of process and supply chain that you necessarily have to provide foreign assistance. Talk to us about the challenges that poses.

George Ingram: Well, think about, for the most part, all of those implementing partners for two weeks have not been able to do any constructive work. They have been focused, one, on trying to figure out what the freeze, two, figure out what the impact is on their staff, their employees, their partners.

In many countries around the world, you have to give 60 day notice before you dismiss an employee. These organizations don't know if they're going to get paid in a week or in three months. And there are some of them are having to start giving notice to the employees. That destroys the trust within an organization. They're spending their time figuring out the impact on employees, how to manage that, and how to respond to the one guidance that is out there and that is you need to justify your programs on what the—how it, how it can benefit, make the U.S. more secure and more prosperous.

So they're having to jump through these unproductive hoops. It literally is preventing them from delivering the assistance from the American people, which is how it's advertised around the world.

Tony Pipa: I mean often, Scott, organizations actually have to pay for their programming and they get reimbursed. So if they do not have the, if they don't have the confidence that they're going to get reimbursed, they may not be able to actually do that programming. And, you know, there are smaller organizations that have already begun to lay people off or significant numbers laid off.

One thing I would add to what George was saying around the work stoppage is also our humanitarian assistance. So our disaster assistance response teams, which are in places that are experiencing famine. I'm even hearing that potentially our response team in Gaza, for example, may have to shut down and they're part of the ceasefire that's happening right now. So the foreign policy implications of this could be really significant and are really significant and huge.

And not only is it not just the credibility of, of the U.S. as a reliable partner, but it's the extent to which, you know, we're going to be acting in solidarity with, with people around the world. And keep in mind, USAID funds organizations across the political spectrum. Samaritan's Purse, for example, is a huge beneficiary of USAID funding. $90 million over the last four fiscal years. This is not something that has been a question mark up to now of what, of what the U.S. wants to be involved in, in putting forward U.S. ideals globally.

Jonathan Katz: Scott, can I just add to–

Scott R. Anderson: Go ahead, Jonathan, please.

Jonathan Katz: There's no, there's no backstop to this. And so the U.S. level of funding globally is so important. So you can't easily just turn these projects back on. This will have you know, sort of multiyear impact, impact, not only just on sort of the projects and the work, but, but U.S. reputation. So I just want to add that this isn't a nice to have, it's a must have.

And I wanted to add, since I've spent a lot of time working on democracy issues globally, the idea of values of U.S values, and sort of what we're working on globally is so important. And it's been critical for the part of the world that I've worked in, which is Central and Eastern Europe, where the US was critical to the transition of countries in Europe to democracies after the end of the Cold War. It was a success and some of these countries are our most important political and military partners today. So you can't discount this.

And of course, with the ongoing conflict in Ukraine, this is particularly important. George brought that up, but if you think about Ukrainians in the middle of winter needing to address the attacks that are taking place in critical infrastructure, U.S. aid has been critical in the United States to ensuring that there's energy in Ukraine and safety and security. So this is really important.

George Ingram: U.S. is the largest bilateral donor in the world, the largest provider of humanitarian assistance, the largest provider of health assistance.

Scott R. Anderson: So I want to come back to these global consequences, but before we do, let's look at USAID itself.

Before we even get to the event of the last few days where we've seen USAID potentially undergoing some serious structural changes, the foreign assistance freeze itself really impacts its staffing profile in part because of the unique way USAID works with and through contractors.

Tony, talk to us a little bit about this. What does the freeze itself do to USAID as an organization and its ability to deliver whatever foreign assistance the Trump administration may want to deliver now or perhaps in the future?

Tony Pipa: Well, you know, so USAID staff traditionally managed contracts, for example, with implementing partners. One of the things we haven't talked about yet, there's been a funding freeze, but then there's also been significant impacts on the staffing within USAID to be able to execute and operate those particular programs, even if we are to be spending money.

There was a significant portion of the senior executive service and senior foreign service officers put on administrative leave. There was a set of institutional contractors that were dismissed. And now a set of personal services contractors dismissed. So even if we wanted to restart a lot of the, the funding that we're talking about being frozen at this point, there's very little infrastructure in which to engage with the implementing partners to be able to do that.

And we're talking about a policy issue and, you know, there's some conversation about whether to your point, you know, Secretary of State Rubio has suggested that he is the acting administrator of USAID and that USAID was going to be merged into the State Department. There was even some swirls–rumors swirling of an executive order around that.

There's a policy conversation to be had about the relationship between USAID and State that has happened off and on, across multiple administrations. But I think it's very important we set aside that policy discussion and policy issue with the actions that have actually occurred to both freeze and change what's going on at USAID right now, just structurally. And the extent to which the executive branch and the executive authority is actually potentially going and crossing into legislative and congressional authority as well.

I think it's really important to distinguish between those two particular issues. We're spending a lot of time on our global standing and, and the policy issues around USAID, but I also have concerns, just constitutional concerns, frankly about some of the actions that have been taken and the extent to which there has been overstepping of the bounds of, of the lines that need to be drawn. And we can talk a little bit about that.

Scott R. Anderson: Yeah, absolutely. We're, we're going to circle back to those. I think those are absolutely critical. But let me close up a little bit of this conversation about the foreign assistance flows itself, which is still such a big part of the picture.

Jonathan, let me come to you a little bit on the common narrative we hear justifying efforts to end, clamp down on, or restrain foreign assistance and to some extent USAID as well. The narrative we heard reiterated by Stephen Miller, advisor to the president in the last few days, Elon Musk—a kind of consulary, some sort of informal advisor or formal, it's a little unclear—has basically described USAID and the broader foreign assistance effort within the U.S. government as undemocratically accountable, driven by bureaucrats and left leaning, Marxist in Musk's words.

But I think most people who work in foreign assistance, work with foreign assistance, knows Congress plays a strong role in setting the parameters for it and that is meant on a bipartisan basis in recent years because Congress is controlled by both parties. So talk to us about actually what the parameters Congress lays out for foreign assistance are, and these allegations that this is somehow a bureaucrat driven process.

Jonathan Katz: Yeah, I think it's such an important question, you know, as someone who's been on the Hill and was a staff director for on the House Foreign Affairs committee. The issues of foreign assistance—I just want to step back on the political—there's been a great deal of bipartisan cooperation support through successive meetings, administrations, but also in Congress, when Republicans controlled or the House or Senate or vice versa, or Democrats. There was always strong support together for assistance.

And so I, I sort of, when I hear these arguments being made that somehow it's, it's for the left, it's only Democrats, it reminds me that in the first, first Bush, excuse me, the first Trump administration—which I worked, I was outside, I worked for, at another think tank—we worked closely with the Trump administration officials and both Democrats and Republicans in Congress that there's been this strong support. You had senators like Lindsey Graham in key committees, like the Appropriations Committee, that in essence have been strong supporters of assistance.

Today that's in question and what we're seeing happening in Congress. We know that there was a big effort by Democratic senators and members of the House today to go to USAID to speak about these issues directly. But I think it was missing Republican counterparts, the ones that I worked with for years together, both in and out of government from the outside, whether it's think tanks or working with civil society organizations, they included everybody, every, every political party who cares deeply about U.S. national security and about the U.S. role globally.

So I just want to go back and say, this isn't, this was never a Democratic effort. It's been something that's been bipartisan, and it needs to be, continue to be—bipartisan. And I think you're starting to see some of the response to what's taking place, but I just wanted to pull it back that that, you know, these issues aren't one or the other political party. I think that those are just talking points and propaganda.

George Ingram: Let me add to that, John and Scott, and that is the foreign aid bill, 95 percent of the money in the foreign aid bill is earmarked by the Congress.

In the last 25 years, the foreign aid bill has passed by large bipartisan majorities. The money goes to AID and the State Department, and who makes the policy decisions? The top level of political appointees. that run those two agencies. Who implements it? The bureaucrats. The bureaucrats who were instructed by those political appointees on how to administer the assistance.

And those bureaucrats and that's sort of a negative term those, those bureaucrats are American assistants who work longer, most of them work longer than eight hours days, who are there to advance the interest of the United States, and it's criminal to attack these people who are trying to do the people's work.

Tony Pipa: Just to add on to, to, to a couple of different points here back to Jonathan's point about the bipartisanship that has undergirded foreign assistance and the work at USAID. It is a national security—it is part of, it's a pillar of our national security and our foreign policy.

And one of the reasons why we've had such bipartisan support is because frankly we are globally both providing the opportunity to build relationships with countries who have become some of our largest trading partners, for example, if you look at foreign aid over, over time, some of our largest trading partners had potential—had been foreign assistance recipients from the USA.

And we have countries like China who have funded about a trillion dollars worth of infrastructure and engagement in developing countries that are also doing the, using their soft power to build those relationships as well. And so ensuring that American interests are both advanced and protected has been a big part of foreign assistance and what USAID has done.

To the question around bureaucracy, you know, unaccountable bureaucracy—to George's point, the earmarks are very clear. And in fact, some of our funding is over 100 percent earmarked, i.e. Congress has developed and said, this is what you shall spend it on and the role is to spend that money.

Having said that, I would also say that USAID and actually the foreign assistance infrastructure in the US government is among the most transparent in government. You have foreignassistance.gov that anyone can go to a computer and see where funding is going. The evaluation policy when I was at USAID mandated that every evaluation of a program was made available on the web within 90 days of it being finished. There's an enormous amount of information that is transparently available around what USAID is doing and what the impact and the outcomes have been of USAID funding.

Jonathan Katz: And Scott, just as somebody who's testified before Congress on assistance budgets, briefed staff on assistance budgets, both the Senate and the House there is been and has been incredible Oversight Committee hearings, Appropriations Committees, Foreign Relations Committees. So these are happening, they've happened all the time.

I think the, the thing that worries me the most in this argument is pointing at the at career civil servants or foreign service while you are seeing the firing of inspector generals across the U.S. government and elsewhere. So, like, if you're concerned about sort of oversight, the oversight is there—Congress provides that oversight power of the purse hearings, letters, subpoenas. They have all the power that they need to provide that oversight.

Internally, you want to have inspector generals and others. Trump has fired several of those inspector generals that have been critical to providing the type of oversight that they're talking about. So I don't know, in this case, is the fox guarding the hen house. It's more about the internal controls of an administration that is wiping away the transparency and accountability versus Congress or career folks. That is where the focus should be. That isn't part of this conversation today, which is more of a wider symptom of what's happening in every department and agency across the U.S. government.

We're talking about USAID today and the importance of foreign assistance, but let's be honest about the wider picture here. And it's not, not scapegoating foreign service or, or civil servants for what's happening. This is a deliberate attempt to, to, to, to, you know, to take away these checks and balances.

And frankly, when I was at AID, the best checks and balances internally were that with the career people at USAID who made sure that money was well spent, taxpayer money was accounted for and they are the heroes in this, not, not what we're seeing today.

Scott R. Anderson: And I'll say, as the resident lawyer on the call—because this is Lawfare, so people care about the legal angle of these things—I think it's worth pulling in this question of congressional involvement in this issue really is the core of the legal question about the legality of the suspension.

Congress has constitutional authority over the power of the purse, traditionally, that has been interpreted and long understood to know that it gets to direct how money is spent by the federal branch of the federal government. The Impoundment Control Act has since the 1970s set up a regime by which the executive branch has to pursue requests to reassign and delay funding by a substantial window, and we haven't seen those steps pursued at this point.

My suspicion is that you know, an Impoundment Act sort of challenge is something that's going to, going to have to ripen with time. You're going to have to be able to make an argument more for constitutional avoidance reasons than anything to, to have a square enough conflict that a court's going to want to weigh in on a constitutional contested question. You're gonna have to have a clear contrast between what Congress has required in a particular case and what the executive branch is doing.

And so it means you'll have to get past whatever discretion statute might provide to delay funding. You have to get past kind of the apportionment process, which is how OMB and the federal government implements specific appropriations and kind of schedules them appropriately. There is an ability to reapportion funds that actually the executive order specifically addresses.

But over time and potentially create quite quickly, you're going to have people, I suspect, with standing to challenge these sorts of actions on an Impoundment Act basis, if nothing else, and probably under potentially Administrative Procedure Act challenge. The real question, I think, is whether people will be willing to do that. Assistance partners, I could see being reticent to do that.

We do know there's one lawsuit that has been reported to be scheduled, filed early this week. But the lawyer leading it said—was very frank about this—he said, I've had a really hard time—even though I work with a lot of aid recipients as clients—getting them to sign to the lawsuit.

I believe the plaintiff as reported this morning was likely to be an association that represents the interests of nonprofits, including many aid recipients, but none of them individually that may change moving forward. But that is a unique challenge in this space is finding a plaintiff—not a problem with enforcement agencies that pursue enforcement activities that companies don't like and then want to sue over them regardless.

Jonathan.

Jonathan Katz: Yeah, I just want to say, Scott, I think all those are sort of right and sort of legal challenges and impoundment, and as you've described it.  I think the greater challenge will be when somebody’s Social Security check is not set or, or, you know, healthcare is shut off or, you know, some of the things that the government provides in terms of services.

I think that's when you sort of get some of these reactions, but members of Congress are speaking directly to this challenge already this issue, including Republicans when the initial order came to freeze domestic spending. And so I think we're already there.

This is, to me, a test case for the administration and this current administration on how far they can get. And my only concern—and you're the lawyer–is when a decision, when a court makes a decision, who enforces that, that the Trump administration will do what the courts say? Which is something I think for, for many of us thinking about this that are concerned about sort of, again, who, who will, you know, who will make certain that they will follow through on whatever ruling happens, impoundment or not.

Scott R. Anderson: That's a fair note. It's worth noting there was a temporary restraining order issued late last week regarding the budget freeze on the domestic side on a—based on similar sort of legal challenges and legal theories. And there was at least for a while an order implementing that within the executive branch that suggested it might extend to the foreign assistance freeze as well, but the U.S. government issued a filing over the weekend or this morning, suggesting they weren't necessarily interpreting it this way.

So we're still waiting to figure out what that TRO's impact will be. And then that's going to be raised by further litigation. There's at least one other case already pursuing it on the domestic side. We're about to have this third case specifically in the foreign assistance angle, and this is just the tip of the iceberg. Again, these claims are going to ripen over time. And frankly, more clients will get affected enough that they're willing to litigate. So we're going to see many, many more of these challenges. The issue is going to get teed up.

George Ingram: Wouldn't members of Congress have standing both because of violation of law and the impact on constituents?

Scott R. Anderson: It's a really good question, and it's a complicated question. I actually wrote a really long report for the Brookings Institution a few years ago on standing that covered this a little bit.

The Supreme Court has held since 1997, a case called Raines v. Byrd, that individual members of Congress do not have standing to challenge legislation like this, even stuff that's being done unlawfully, contrary to statute. What the Supreme Court has left open is the possibility that Congress as a whole or individual chambers might be able to sue and they would have to authorize it. But you would need some sort of resolution doing that which might be hard to get given the current partisan composition of both chambers—although narrow margins, and obviously a few people flip, and that could in theory change. I think it's probably unlikely, at least in the near to medium term.

There is also this question as to whether the House or Senate individually could do it or collectively could do it. Appropriations Clause violations: the D.C. Circuit has held in a case relating to the border wall—although it's since been vacated—but it's probably still reflects the D.C. Circuit's reasoning on this, has held that either the House or the Senate can challenge Appropriations Clause violations but not necessarily just a pure statutory violation.

That says these are Appropriations Clauses violations at their core, at least that's, that's one way you can approach them. And so at least in the D.C. Circuit, there's a good chance that the House or the Senate could establish standing if you could get a resolution authorizing litigation in either chamber.

That's my assessment at least. I don't think we 100 percent know. Sorry, go ahead, Tony.

Tony Pipa: Well, Scott, I was going to–because what I hear you talking about is the funding freeze and the impoundment clause and about the legalities of all of that. But given that the secretary of state has suggested he's the acting administrator of USAID; given that USAID's website is shut down and is now, —what presence there is of USAID is underneath the State Department's website. They're, they're seeing these signals that USAID is being merged or, or immigrated over to the U.S., migrated over to the State Department.

Now Congress in 1998, through the Foreign Assistance Reform and Restructuring Act, established USAID as an independent agency. So wouldn't there be, like, wouldn't Congress actually have to be the one to be able to, with structurally change USAID? I mean, does the executive branch have the authority to kind of make that? And what kind of standing does Congress have? Like, how does all that legally work out?

Scott R. Anderson: So it's a really good question and I want to circle back, before I answer the legal part of that, let me tee up some of what's happening the policy part to this, for folks who may not be listening. And let me circle back to the legal question there, because I do think it's worth getting into, and frankly, something that's going to get a lot of airtime in the next couple of days.

Before that, though, let me actually turn the question back to you, Tony. Well, actually–let me, let me do one thing first, before we, we jump into this. I want to close up one aspect of this freeze conversation with a question for you, George, if that's alright.

The, the 90 day freeze you guys have already noted is having a big impact on implementing partners or the freeze so far, the two-week freeze. And I think it's fair to say a lot of foreign assistance delivery is highly, highly reliant along, on this industry that has developed of nonprofits and for some for-profit companies that serve as the implementers for these. Do we have a sense about what a 90 day freeze, if it remains quite broad, will have on that industry, on that sector, and on the broader capacity for the United States to engage in these sorts of foreign assistance missions?

George Ingram: Yes, it will hollow out that capacity. Organizations right now are having to put staff on administrative leave, paid or non-paid leave.

If this goes on more than another couple of weeks you're going to see organizations dramatically reduce their staff. You've already seen one fairly large organization say that it's going to have to file for bankruptcy. If this goes on for 90 days, you're going to see tens and tens and tens of organizations go under. The end of which, the U.S. isn't going to have the capacity to deliver assistance.

Tony Pipa: And in the end of which, you know, we'll have created a leadership vacuum globally that allows many other countries to step into—countries that will not have the U.S. interests best at heart.

And let me just be clear: any new administration coming in, you know, certainly has the prerogative to review, review former policy, review former projects and undertake changes. But you don't necessarily have to freeze spending to do that, like freezing the spending and actually undertaking the review are two different things and having two different impacts right now. And to George's point, a 90 day freeze would be catastrophic for the, for the community. Yeah.

Jonathan Katz: And Scott, I, I think it's—this is a deliberate timeframe. The aim is to actually to, to, to have this collapse. It's not because—as Tony pointed out, and previous administrations have come in before they do reviews. You could do this in a 30 day review, right? You could do something sooner than that, but you would keep the staff in place to help do the review. There's nobody there to do the review.

So, so George points these out what's going to happen. But it's, let's be clear this is a deliberate policy with an intended outcome. And, and I said again, and I think this is something that you will see across the U.S. government. This is– these are deliberate actions.

Scott R. Anderson: Well, that brings us to this broader question of strategy that really blends into the structural question about what is the envisioned role of foreign assistance and how does that relate to how USAID is being treated, these authorities are being treated.

Before I get to that legal question, let me turn to you, Tony, on, on an important aspect of this, especially as somebody who's thought about from the strategic perspective from USAID.

Talk to us about how traditionally USAID strategy and its role is conceived of and operates in relation to the foreign policy apparatus, and particularly the Office F, right? The F that we're hearing is the Office of Foreign Assistance in the State Department that is driving this review process has been accused and reported as being one of the, the bottlenecks around issuing waivers because they're the body responsible for doing it and they're asking questions and taking a long time and issuing some of them, at least according to reports.

Talk to us a little bit about what the role of F traditionally is, how foreign assistance fits into the broader strategic picture of foreign policy, and why USAID has been made an independent agency separate from State in the past, how that fits into that picture.

Tony Pipa: Well, traditionally, U.S. foreign policy is based on three pillars: defense, diplomacy, and development. And frankly, both defense and, and development have a longer, often have a longer term perspective. Development is a long-term game. So investing in countries to help them with their economic growth and reduce poverty to ensure, you know, better outcomes on health. I mean, part of what USAID does is humanitarian assistance. That's in the moment. That's the quick, you know, we need to get on the ground in the in the face of a natural disaster or a famine and make sure that people stay alive. But development strategically is a long term purview.

Diplomacy is actually short term deals to ensure that U.S. process–that U.S., that U.S. interests are being furthered And so you want to be able to have a healthy tension actually between the long term view And the immediate view as you're engaging with potential allies or frankly, potential threats. And that's why development is, is an independent agency.

Now, F was actually set up to help in a comprehensive view of the development assistance that, that that occurs across the entire for U.S. government. USAID is just one agency of a set of agencies that actually make foreign assistance available. You have the Millennium Challenge Corporation; State Department itself has programs that are development programs in nature, and F is, is meant to aggregate up and give us a holistic view of the spending of foreign assistance across the entire federal government.

George, Jonathan, I'd, I'd offer you all to jump in and, and offer any additional nuances to that.

George Ingram: Yeah, I would just pick up on the end there in that the original concept that Condi Rice have, of F would, was this center across the U.S. government for knowledge on foreign assistance. That never happened. The, the more established, larger, powerful agencies, Treasury, DOD, Agriculture weren't up for taking direction from the State Department. So they never agreed to this.

And basically, F was left with overseeing and micromanaging USAID. And the relationship between AID and F have, have changed over the depending on the players. And sometimes you had a player at F who took a more strategic perspective and basically AID and F work together. At other times you've had a head, a head of F who was more of a micromanager and wanted to get involved in managing the implementation of the system, systems.

And the truth is it's not smart for any of us who served at a policy level—as Tony and Jonathan and I have at AID—to get involved in the implementation of assistance because we haven't been in the field doing that. And that's one of the main arguments behind the movement for localization is to get the decisions made in the field that meet the priorities of the local stakeholders,

Jonathan Katz: Scott, can I, can I just, you know, you know, AID has this incredible unique talent as well that we didn't talk about today, both on the ground in, you know, in countries, but also you know, sort of in in USAID that is different in many ways than you would find at State Department, but compliments the work.

And it makes me think about the sarcophagus for the, for Chernobyl, which was a multi year project that USAID and State Department managed, but needed certain technical expertise to manage the project and the contracts—things that USAID does and does well.

But I did want to add to, you know, every year, there's an annual process for budgeting. There's a process, a five year process for country specific planning. So what makes AID unique, as Tony mentioned, is this future perspective. And I think the United States one of the things that we need to do and continue to do—is have that capacity, that short term capacity to respond, but also the longer term capacity to plan.

And what we're seeing today is that being cut down in so many ways. And I want to add that the, the partners that George has worked with, I have worked with, Tony as well—implementers, those that are on the ground, civil society organizations, independent media—these are all critical components and in many ways critical partners to carry out both the development of a country, but also key to our national security.

So I just want to add AID is unique in that, and I spent a lot of time saying, hey, we want to build up this type of talent, not tear it down.

Tony Pipa: If, if, if we're doing our job well through foreign assistance, we are preventing the diplomats and the Defense Department to have to act because we've built sort of the, the environment for countries and communities to thrive and also to see a strong relationship with the U.S. as a positive one.

George Ingram: I'll give you one very concrete example that I was involved in when I was deputy assistant administrator for the Europe-Eurasia Bureau. Our ambassador to Armenia had a great idea of providing computers to high schools in Yerevan. Great idea. And you know, if he had had the money and the authority to do that, they would have gone into the schools.

What was AID's role? AID's role was to look at that and say, hmm, do they have connectivity? Do they have teachers there who know how to work a computer and can teach? And the answers all came back, no.

Scott R. Anderson: So before I get to the legal part of this question, the merger. of USAID and state, or of Rubio simply acting as acting administrator, which is all we know is happening so far—we haven't actually seen an executive order directing any sort of merger. What does that do to the decision making process and to the priorities? Or do we not know yet?

Tony, let me start with you. I mean, what is, what is your sense about what might happen, good or bad?

Tony Pipa: I, I'm going to defer on that because I think we don't know. I mean, I think, I think it's just a big question mark right now, and I think that that uncertainty is having global implications for U.S. standing in the world right now, but I don't think we know what that machinery would look like.

We do know the right now, to George's point, that the review of assistance is going through F and that the director of policy planning at the State Department, Michael Anton, is kind of somehow also involved in that.

But what would decision making look like with the merger? It would depend, frankly, on the extent to which they keep some sort of infrastructure on the policy side that's development related and separate from current State Department offices, or they try to, like, merge all those together. And I think that's a, that's a question mark. I don't know.

Scott R. Anderson: Let me, this is a good point to jump in and deal with the legal side of this, which I think is something that's on people's minds. And we've seen a few questions about it.

Tony, I think you already noted there is a 1998 law that pretty solidly establishes USAID as a, an agency with an entity within the executive branch. It actually provided the executive branch an opportunity to pull USAID into the executive branch and into the State Department—basically said unless the executive branch through a particular report says we're going to merge these functions, it will be an independent entity. That report chose not to.

So as far as we know, statutorily, USAID really seems pretty clearly established in law. Congress has of course appropriated money to USAID, legislated items specifically to USAID, and reinforced that understanding for a really long time.

So I do think it raises really legal big legal questions as to whether the president could even do something like this. My suspicion is that he probably cannot. You would have to have such a broad vision of presidential control over the civil service that it would be crowding out Congress from a ton of things that it does on a daily basis that frankly are important to both parties, particularly when you expand it to other agencies. And so I think it raises all sorts of big legal questions.

And I think that might be part of the reason we are seeing Rubio be made acting administrator instead of any sort of full merger as of yet as a kind of legal consequence. You know, maybe some breaks were applied at some point. Because you can put in someone as an acting administrator in another capacity; we see that somewhat frequently, particularly in the two Trump administrations. So it's not unusual that the secretary of state could be made the acting administrator under the Federal Vacancies Reform Act and other federal legislation.

I need to go back and think about whether there's a problem there, but for at least a period of time, that's a legally available option that's different from statutorily moving USAID under State. That, I think, would pose much bigger legal questions. But there is this question about who could actually challenge it.

George Ingram: Two points on that, and that is the appropriators in the existing foreign appropriations law, the 2024 appropriations law, told the administration, no reorganization of State or AID unless you come talk to us, okay? So they're already in violation of that.

But, most authorities in the foreign assistance area are designated, are authorized to the president, who delegates them to the secretary of state, who sometimes delegates them to the head of USAID. Those delegations can be brought back, so you can have a de facto merger, as long as you keep the name of AID out there and pretend it exists.

Scott R. Anderson: That's very astute and an excellent point to make, because that's absolutely right. And that may be something we end up seeing happening as a—you said a de facto merger as opposed to a de jure folding in.

The question then comes, you know, what could anyone do to legally challenge this? And I'll say, you know, the congressional standing question that Tony raised before is still there, it's the same answer. Maybe Congress could challenge this particularly if they could find an appropriations act angle, maybe just the House or the Senate could.

But you know, otherwise I do think there are likely to people who have standing out of this. It's a little trickier though, because you have to find somebody who has suffered an individual injury—whether it is somebody who would have received foreign assistance, but didn't because of whatever change was undertaken in violation of a statute, like USAID being disbanded, or probably more likely someone who suffered adverse personnel action because of that merger, rendered redundant, subject to a reduction in force. And then I suspect those people would have standing to pursue a legal claim.

I'm not sure there's any of those people right quite yet. And you may face challenges tying the, connecting the causal link from the merger or whatever the unlawful action is to the harm you're suffering. That's going to be something they're going to have to prove to the court and probably something they're going to face some pushback from, I suspect.

Because of that, the pushback may be substantially political, certainly in the nearer term, and as Jonathan mentioned, we saw some of that earlier today with a number of members of Congress, House and Senate, but all Democrats to my knowledge talking in front of the Ronald Reagan building, which is the main USAID headquarters here in Washington, D.C.

Jonathan, talk to us about where we may see pushback coming from the Hill and where the Hill has leverage. And particularly the Democrats who seem to be most up in arms about this currently might have leverage, if anywhere, given that they are in the minority in both the House and the Senate.

Jonathan Katz: And it's I think the leverage is, is unfortunately is, is not particularly strong right now, but areas where you will see it is, whether it's a hold up of nominees for key, key administration positions, which is something that, that, you know, senators have used previously in both parties when they object to policy.

And I think that may be where, where some members go, and I think this has already been, I think, one senator may have been—and I apologize if I'm not getting this right—Senator Schatz, who I think sort of made this statement about holding up nominees that's one way that they can do it. Also through the budget process. As well, of course, we'll see a continuing resolution come to an end pretty soon, the need to negotiate new appropriations going forward. Debt ceiling as well.

So there's an opportunity for members to weigh in and I think about some of the nominees that have gone through, including some that have ended up including Hegseth in what was a fifty, 50-50 tie broken by Vice President Vance that you can see that there is some there's some objection by Republicans, whether it is Susan Collins, Murkowski, even McConnell to what's taking place.

And I think that, that Democrats will have to find common cause, particularly in the Senate and the House, to address these challenges. I haven't seen it yet in the House and you're just starting to see members—in some ways I feel like there's been a, there's been a wake up over the last couple of days, let's remember we're only a little over two weeks into this administration, hard to believe based on what's happening.

And so I think you're going to see members through, through those process, through legislation, letters, etc. There's no subpoena power for those in the minority. That's difficult. And so they're going to have to find other ways to, to do this. There’s an election in two years. And so I think the court of public opinion is going to matter greatly.

George Ingram: And we just add to that, that some of the umbrella groups—the U.S Global Leadership Coalition, the Modernizing Foreign Assistance Network Interaction, some of the large NGOs, had been on the Hill since last week trying to mobilize members of Congress, specifically mobilizing a group of Republican members of Congress, and there's been some interest there to push back on the administration.

And secondly, on the, on the legal case, I think we're getting to a point—and I would never suggest I can anticipate the future, but I think there's some aid implementers that in the next week or so are in such dire straits that they might as well go ahead and file the, file the suit because they're going to go belly up in a couple of weeks anyway, so they have not, they're, they're about to be at a point where they have nothing to lose.

Scott R. Anderson: We are almost at time. But I want to leave each of you with a question I'll actually ask for you each to address.

It seems like for the foreseeable future, Secretary of State Rubio is the one technically in charge of foreign assistance generally and USAID itself, practically, in whatever state it continues to exist, presumably has some influence over that, perhaps not absolutely. We know the head of F currently has a relationship with President Trump in the White House as might other people involved in this process, so it's not clear to what extent Rubio has sort of sole control.

We also know Rubio is somebody who spent many years on Senate Foreign Relations Committee, was approved unanimously by the Senate in his recent confirmation, received a lot of positive comments from Democrats, from bipartisan sources on the Senate Foreign Relations Committee. And he is somebody who's been outspoken about the importance of foreign assistance as a foreign policy tool repeatedly in the past and has participated in congressional role in setting up appropriating funds for and authorizing foreign assistance for years.

So presumably, there is a push and a pull happening here. Rubio may sympathize with certain motivations of the Trump administration, of some people there, share some of the current concerns, and he certainly has to follow his boss's directive. But he also might appreciate or hopefully appreciates when those things might go so far and undermine the actual capacity to deliver foreign assistance.

So with that context in mind, recognizing there are limits to what he can or can't do, I'm curious—what advice would you give him about how to approach the scenario moving forward? And what are you looking for as he and the other people involved navigate this to see things beginning to right the ship, move slightly in a better direction from where we are and where things may be headed towards a more negative outcome.

George, lemme start with you on that.

George Ingram: I would ask the secretary a simple question. Do you wanna lose one of your key tools of U.S. foreign policy? It's simple as that. Because in the last couple of weeks you literally have seen the, the gutting. of foreign assistance, and if that's not turned around quickly, you will no longer have that tool as you go around the world and try to implement U.S. foreign assistance.

And I'd follow it up, do you care about Latin America? Do you care about Central America? Isn't immigration a big issue for this administration? And you're not going to be able to help the administration deal with that domestic problem unless you have foreign assistance in your toolkit.

Scott R. Anderson: Tony, what about you?

Tony Pipa: I would follow that up by asking the secretary of state if he truly believes that it's important to advance U.S. interests by containing the influence of China globally and to reflect on how one particular action at the very beginning of this administration will undermine any attempt that he tries to do in the future, because he's dismantled the very tool that has made us an unreliable partner to many countries and they will seek reliability elsewhere, and that will be the first place they turn.

Scott R. Anderson: Jonathan. I'll let you close us out.

Jonathan Katz: Yeah, both of those were spot on with sort of recommendations for Mr. Rubio. Unfortunately, I don't, I don't see him having the type of influence within the, the national security strategy to overcome this current sort of impasse. But I would ask this—George and Tony mentioned, which is really, it's about U.S. national security interests—why would the United States, why do you think this helps preserve and protect the United States and our interests here, but also globally?

And think about how we overcome the situation once starting by unfreezing this freeze, bringing back USAID staff to continue to work our best and brightest people that we have and don't gut these programs. There's long, there's short and long term consequences for what's taking place, and hopefully he'll be able to provide this messaging, but we know that, that secretaries of state and national security figures in the last Trump administration didn't last long.

Scott R. Anderson: Well, we will have to leave it there, but for better, for worse—most likely for worse—the roller coaster is probably not over for USAID or for foreign assistance more broadly. We're probably gonna have opportunities to revisit this again in the future. Until then, though, George, Jonathan, Tony, thank you for joining us here today on the Lawfare Podcast.

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