The Trump administration’s long-running effort to cancel certain foreign aid is back on the Supreme Court’s emergency docket.  In Trump v. Global Health Council, the government is seeking to stay an injunction that requires it to obligate some $10.5 billion in aid money before the money expires at the end of the fiscal year on September 30.  Although it presents many other issues, the case’s posture—challenging a refusal to obligate funds that expire in twenty-one days (and counting)—highlights a potential mootness question looming over current appropriations litigation, as well as some virtues and vices of the Court’s past emergency rulings.

Consider first the Court’s ruling two weeks ago in National Institutions of Health v. American Public Health Association.  In that case, in a split ruling joined in full only by Justice Barrett, the Court held that challenges to the termination of certain medical research grants belong in the Court of Federal Claims rather federal district courts.  At the same time, in the other half of its split decision, the Court allowed a challenge to the agency’s overall grant-making guidance to proceed in federal district court under the Administrative Procedure Act.

This outcome depended on the interaction of two statutes.  On the one hand, the APA allows suits challenging final agency action, but it only permits remedies other than money damages, and it does not apply if another statute “expressly or impliedly forbids the relief” in question.  On the other hand, a nineteenth-century statute called the Tucker Act gives the CFC jurisdiction to award damages based on breaches of an “express or implied contract with the United States” or violations of statutes or constitutional provisions that mandate payment.

In yet another emergency-docket ruling back in April, the Court suggested that some spending claims belong in the CFC.  In that case, Department of Education v. California, the Court stayed an order that “enjoin[ed] the Government from terminating various education-related grants” and “also require[d] the Government to pay out past-due grant obligations and to continue paying obligations as they accrue.”  The Court held, with scant analysis, that claims for such relief “likely” belonged in the Court of Federal Claims.

In NIH v. APHA, the Court doubled down on that suggestion.  In a concurrence, two justices even scolded the district court for “defy[ing]” the Supreme Court by failing to “follow [the Court’s] direction” in DOE v. California that claims seeking payment of grant obligations “do not belong in district court.”

Whether or not the Court’s ruling was sound, splitting apart different aspects of the spending challenges will complicate litigating them, and Justice Jackson wrote a fiery dissent in NIH accusing the majority of playing a form of “Calvinball” in which “this Administration always wins.”

There is, however, one potential silver lining for the challengers:  For at least some claims, the DOE and NIH rulings could actually help guarantee eventual resolution of key issues.  That is so because the government might well argue in a few weeks that the end of the fiscal year has rendered district court litigation moot with respect to any expired funding.

This argument should not necessarily succeed.  Lower courts including the D.C. Circuit have long held that, if challengers sue while funds remain available, the court may preserve the status quo with a preliminary injunction extending unobligated budget authority past the end of the fiscal year.  A statute, moreover, seems to validate this authority by providing that “[a] provision of law requiring that the balance of an appropriation or fund be returned to the general fund of the Treasury at the end of a definite period does not affect the status of lawsuits or rights of action involving the right to an amount payable from the balance.”  Alternatively, challengers might argue that they have a live claim for declaratory relief or some other remedy even if they can no longer get paid.  Given the administration’s zeal for asserting executive authority over spending, perhaps spending irregularities can fit within the mootness exception for wrongs “capable of repetition yet evading review.”

The Supreme Court, however, has not squarely addressed this issue, let alone explained how any equitable power to extend budget authority should apply in the current cases.  This issue is just one of many now-urgent questions that Matt Lawrence, Eloise Passachoff, and I identified as unsettled in our essay on “Appropriations Presidentialism” (though I should say that I am writing here only for myself and not necessarily for my coauthors).

That brings us to a potential benefit of NIH’s claim-splitting:  Whatever the correct answer to the mootness question in other settings, CFC litigation should sidestep it.  That is because damages awards from the CFC do not get paid from time-limited appropriations, but instead from a permanent, indefinite appropriation called the Judgment Fund.  Accordingly, cases seeking such relief should not become moot when the fiscal year ends; the court can still order payment.  Indeed, the whole point of this arrangement is to prevent the government from stiffing people, and a damages remedy here could be quite potent:  if nothing else, it would undermine the administration’s claims to have achieved significant cost savings.

To that extent, far from thwarting impoundment litigation, NIH v. APHA may have helped insulate some of it from certain objections.  Nevertheless, there are at least two problems. 

The first is that CFC litigation itself will raise many questions—questions the Court has given little sign it appreciates.  For example, it is not obvious that all grant terminations amount to breach of contract; some might but others might not.  In addition, past decisions on Tucker Act jurisdiction are notoriously murky, as evidenced by the disagreements about them in the concurrences and dissents in the Court’s own recent rulings.  If CFC litigation is to provide a vehicle for resolving key questions, the Court will have to stick with its apparent view that the CFC has jurisdiction—and not pull the rug out when these issues come back up the appellate ladder.

The second problem is that even a generous understanding of CFC jurisdiction will not permit litigation in that forum of all the current disputes.  CFC jurisdiction, again, requires some contractual, statutory, or constitutional entitlement to payment.  Accordingly, it will not help in suits like the foreign aid litigation.  There, the claim is not that the agency has failed to make required payments, but instead that it has refused to award grants at all.

In such cases, the other side of Justice Barrett’s holding in NIH should help:  agency non-spending (assuming it constitutes final agency action) should be reviewable under the APA for the same reasons as the grant-making guidance in NIH.  But that point returns us to the mootness question we started with:  Once the fiscal year ends, what relief will courts still be able to order?

Though it may not be a focus of the briefing at this stage, this problem is likely to be particularly acute in the foreign aid case.  In that case, the administration has not only unlawfully deferred spending over the course of the fiscal year.  It has also now claimed that it may exploit those delays to cancel some spending outright.

This theory depends on a peculiar reading of the Impoundment Control Act, a statute generally designed to limit unilateral executive spending cancellations.  Although the ICA does not allow the President to cancel spending on his own, it does allow him to propose that Congress do so, and if the President makes such a “rescission” proposal, the statute allows him to delay the spending in question for a forty-five day period.  After that period, the statutes makes plain that the administration must release the funds for obligation “unless” Congress has enacted rescission legislation.

Taking advantage of these mechanisms, the administration has proposed rescinding some $4 billion of the foreign aid money at issue in GHC, yet it deliberately did so less than forty-five days before the fiscal year’s end.  In a maneuver called a “pocket rescission” (by analogy to the “pocket veto”), the administration believes it can still run out the forty-five day clock on this money and thus allow the funds to expire on their own due to the fiscal year’s end.

This reading of the ICA is perverse.  It ignores the statutory language requiring obligation of funds unless Congress rescinds them (something Congress cannot do once funds have expired), and it turns on its head the statute’s evident purpose of constraining non-spending.  Yet the administration seems committed to acting on it, and even if it has a change of heart, the administration would likely have difficulty prudently obligating $4 billion in foreign aid in the next three weeks, as the district court’s injunction requires.  As a result, litigating the validity of the pocket rescission may well require confronting the question whether courts can extend budget authority beyond its expiration.

In sum, the stay request in GHC seems likely to present, directly or indirectly, a thicket of complex and interwoven questions of judicial, executive, and congressional power, some with potentially large long-run consequences.  Courts do not do their best work in such a posture, and the Court’s prior under-reasoned and over-confident rulings do not inspire confidence.  These cases ultimately implicate Congress’s power of the purse, an essential legislative check on unilateral executive action, and it would be better if Congress stepped in to defend its own prerogatives.  Political blowback actually caused Trump to back down twice from attempted pocket rescissions in his first administration, but this time I’m not holding my breath.

Zachary S. Price is a Professor at the University of California College of Law, San Francisco (formerly UC Hastings).