Make no mistake—it was pleasing to see the Supreme Court hand President Donald Trump a loss on Wednesday, turning back his request to continue to hoard foreign aid money that Congress had already duly allocated and foreign aid partners had already earned. But what wasn’t pleasing at all was that the case was a real squeaker in terms of upholding democracy.
Only five of the nine justices agreed that Trump is not a king and cannot just single-handedly (well, double-handedly, if you count Elon Musk) decide how taxpayer money is spent. Four of them—Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas—disagreed, with Alito penning a whiny dissent where he declared himself “stunned” that the majority did not want to let Trump usurp Congress’s power of the purse.
The Supreme Court
Justice Alito is not stupid, but he thinks the American people are. Hence a dissent in which he pretends not to understand how courts work, how government funding works, and how contracts work, all in service of giving Trump far more power than the Constitution does.
Perhaps the most blatantly hypocritical part of the dissent is the rhetorical question that opens it: “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?”
Here, Alito is feigning outrage that the lower court judge in this case ordered the Trump administration to pay up. But his indignation at a lone district court judge being able to order the government to do something is undoubtedly manufactured here. Conservative litigants routinely run to two single-judge districts in Texas in order to ensure a nationwide victory from friendly district court judges. That sort of blatant judge-shopping doesn’t always raise Alito’s ire, however.
As Professor Steve Vladeck noted, when Alito dissented in 2023’s United States v. Texas, where the majority held Texas lacked standing to challenge Biden-era Department of Homeland Security immigration rules, he was a big fan of judge-shopping cases into Texas. He would have upheld—you guessed it—a nationwide injunction issued by a single judge that, as Vladeck puts it, “effectively dictated to the executive branch what its immigration priorities must be.” In that same dissent, Alito went on to chastise the Biden administration for its “grossly inflated conception” of executive power because it infringed on the power that the Constitution grants exclusively to Congress to control immigration.
So, to recap: when a Democrat is president, Alito is very very concerned about the impermissible encroachment of the executive branch upon congressional authority. When a Republican is president, he can do whatever he wants.
Alito isn’t just pretending he doesn’t know how courts work. He also decided to pretend he doesn’t know how government funding works. He complains that the United States would “probably lose forever” the $2 billion the administration was ordered to pay and huffs about how “the Government must apparently pay the $2 billion posthaste not because the law requires it, but simply because a District Judge so ordered.”
A district court judge so ordered it, Alito well knows, because that $2 billion is already appropriated by Congress and owed to USAID contractors who already did the work. But Alito dutifully adopts Trump’s framing, worrying about how the government “would probably be unable to recover much of the money after it has been paid because it would be quickly spent by the recipients or disbursed to third parties.”
The government is not entitled to “recover” anything from the USAID contractors. All it is allowed to do here is to pay them the money they were already granted for work they already did. This isn’t even a particularly thorny legal problem. It’s separation of powers 101.
The Constitution gives Congress the exclusive power to make these decisions. To entertain the idea that the administration can just refuse or recover payment because the xenophobic hobgoblins in Trump’s brain say so is absurd.
Alito does have a solution for the thousands of organizations and people affected by the administration’s refusal to pay: they can all file individually in the Court of Federal Claims to seek past-due sums from the government. Setting aside what a monumental lift that would be, particularly for small USAID contractors worldwide, it also offers a solution that the Trump administration would no doubt still oppose.
This, finally, is Alito pretending he doesn’t know how contracts work. For the USAID contractors to prevail in the Court of Federal Claims on an argument that a payment from the government is past due and owing, they would have to successfully argue that the government entered into a contract with them and has failed to pay.
The Trump administration’s argument, though, is that it has unilateral authority to terminate any contract or grant it doesn’t like and refuse to pay. Put another way, their argument is that the USAID contractors have no contract claim against the government because Trump has the executive authority to undo any spending promises made by Congress.
Alito’s view that Trump should be treated like a king is entirely misguided, but he’s not alone. Three other justices joined his dissent. Conservative legal commentators like Josh Blackman, who once gushed over Amy Coney Barrett, are now complaining that “I am fairly confident she does not like President Trump” after she joined the majority here, as if that is supposed to matter.
Supreme Court justices are not obliged to like Donald Trump, even if they are his appointees. Only kings are owed this sort of absolute fealty. AndTrump is not a king, even if four justices on the Supreme Court seem perfectly willing to let him be one.
Trump calls himself a king. But we know we are not a nation of kings—and we never will be. Get your Daily Kos T-shirt or hat to spread the message and wear it with pride: No Kings.
