The Supreme Court on Wednesday night temporarily paused a lower court order that required the Trump administration to release frozen foreign aid funding by midnight.
Acting Solicitor General Sarah Harris had asked the Supreme Court for the pause earlier Wednesday, writing that an order from U.S. District Judge Amir Ali's had imposed an "arbitrary timeline."
“It is not tailored to any actual payment deadlines associated with respondents’ invoices or drawn-down requests, or anyone else’s. And it has thrown what should be an orderly review by the government into chaos,” Harris wrote.
Harris also said the government "is undertaking substantial efforts to review payment requests and release payments."
"Officials at the highest levels of government are engaged on this matter," she wrote.
In the Supreme Court's order temporarily blocking the midnight deadline to release the foreign aid funds, Chief Justice John Roberts asked for the parties in the case to file any responses by noon on Friday, as the court seeks more information about the case and figures out what to do next.
The emergency Supreme Court filing came soon after a three-judge panel of the D.C. Circuit Court of Appeals on Wednesday moved to dismiss the Trump administration's appeal of the case.
Lawyers for the Justice Department filed papers in the case saying that the Trump administration couldn’t comply with the district court order to unfreeze the foreign aid money, despite being directed to do so almost two weeks ago.
The filing said that if the appeals court didn't pause the order, the government wouldn't be able to make the deadline because it will take "weeks" to free up the money owed.
"[R]egardless whether this Court stays the district court’s order, agency leadership has determined that the ordered payments 'cannot be accomplished in the time allotted by the district court," their filing said.
"Additional time is required because restarting funding related to terminated or suspended agreements is not as simple as turning on a switch or faucet. Rather, the payment systems of USAID and State are complicated and require various steps before payments are authorized," the government said in another filing, estimating the process would take "multiple weeks."
The government estimated the total amount of money it would have to free to be in compliance is about $2 billion. It said it expects to be able to free up roughly $15 million by the end of the day.
Ali, the federal district court judge, had set the midnight deadline after aid groups and businesses argued that the State Department and the U.S. Agency for International Development had not been complying with his Feb. 13 order immediately blocking a blanket freeze on foreign aid. The judge directed the government to comply in two other orders last week.
At a hearing Tuesday, attorneys for the aid groups said their clients had reached a crisis point, and had been forced to lay off employees while staffers faced legal — and in some instances physical — threats for non-payment from vendors and other creditors in some of the countries they operate in.
The judge asked a Justice Department lawyer about what steps the government had taken to comply with his order, and the attorney said he was “not in a position to answer that question.”
Ali then set the Wednesday night deadline.
The government had asked him to stay his order while it appeals to the higher court, a request the judge rejected in an order earlier Wednesday that questioned the government's contention they would need weeks to comply.
"This is not something that Defendants have previously raised in this Court, whether at the hearing or any time before filing their notice of appeal and seeking a stay pending appeal," he wrote.
"If Defendants wanted to propose a different schedule for achieving compliance, that is something they could have proposed to this Court and that the Court could have considered alongside Plaintiffs’ showings. Any such schedule would have to take into account that Defendants have already had nearly two weeks to come into compliance, apparently without taking any meaningful steps to unfreeze funds," the judge added.
The aid groups had urged the appeals court panel not to stay Ali's ruling.
"By halting disbursements to Plaintiffs — American businesses and nonprofits — even for work they had already performed, and which already had been reviewed and cleared for payment, the funding freeze plunged Plaintiffs into sudden financial turmoil. Without funds to meet their operating expenses, which in many cases they must continue to incur under the terms of their awards, the funding freeze has left them facing imminent collapse. Already, Plaintiffs have had to furlough or lay off thousands of American workers," their filing said. "Meanwhile, many of those who depend on their programming face starvation, disease, and death."
The groups also said the government's assertion that it would take so long to release the cash "beggars belief."
"For twelve days, Defendants have stonewalled and abjectly defied the district court’s unambiguous temporary restraining order," they contended, adding "it makes no sense that the State Department and USAID — which have had no trouble timely disbursing payments for decades before the unlawful funding freeze — would now be unable to do so, but for Defendants’ deliberate efforts to halt payments."
"Defendants have erected numerous new barriers to compliance at every turn. This conduct cannot be explained as anything other than willful defiance of the Court’s orders," the plaintiffs said in another filing.
The Justice Department maintains it is in compliance with the judge's order. It said Wednesday that Ali had targeted the "blanket" nature of the funding freeze, and since then the State Department and USAID had conducted “a good-faith, individualized assessment of [each] contract or grant and, where the terms or authority under law allows, taking action with respect to that particular agreement consistent with any procedures required.”
"As of this morning, that process has been completed for USAID and State Department" and Secretary of State Marco Rubio "has now made a final decision with respect to each award, on an individualized basis, affirmatively electing to either retain the award or terminate it."
The filing puts the total number of the awards that were reviewed at over 12,000, and said that over 10,000 of them had been terminated.
The plaintiffs called the claim that Rubio reviewed all those awards far-fetched.
It "would be impossible for one person or even a group of people to meaningfully review all of these contracts and awards in such a short period," they said. They've asked to call Rubio as a witness at a hearing in the case next week, a request the government says should be rejected.
“[T]op executive department officials should not, absent extraordinary circumstances, be called to testify regarding their reasons for taking official actions,” the government said.
The orders by Ali marked the second time a judge found the administration was not complying with a court order. Earlier this month, a federal judge in Rhode Island found officials were not following his directive to lift a broader spending freeze. The findings sparked concern that the administration would not follow court orders, worries that were exacerbated by a social media post earlier this month from Vice President JD Vance, who wrote, “Judges aren’t allowed to control the executive’s legitimate power.”
Speaking to reporters in the Oval Office earlier this month, Trump said his administration would follow court orders. "I always abide by the courts. Always abide by them, and we’ll appeal," he said.
