Opponents of President Donald Trump’s USAID spending freeze will take cheer from the Supreme Court’s refusal to intervene this week.  But there is less cause for celebration than they claim. The Justices’ decision to allow a trial judge’s order resuming spending to proceed is merely the first procedural skirmish in a larger constitutional battle that will return to the Court.  In the meantime, Trump’s campaign to restore executive energy will still play out with the home field advantage created by the Constitution itself.

In Department of State v. Aids Vaccine Advocacy Coalition, a D.C. federal trial judge issued an order forcing the administration to release about $2 billion to American-based humanitarian aid groups.  Upon taking office, Trump ordered a 90-day freeze of foreign aid to determine that the grants remained effective and legitimate, properly disbursed, and in U.S. foreign policy and national security interests. Judge Amir Ali, just confirmed by the Senate to the D.C. federal district court in President Joe Biden’s lame duck period, took an extraordinary measure: he issued a temporary restraining order requiring payment at least for work allegedly already completed by the aid groups.

When the federal appeals court could not figure out whether to stop Judge Ali, Chief Justice John Roberts temporarily put the order on hold last week. But this temporary halt proved exactly that – a 5-4 majority of the Court on Wednesday decided to allow Ali’s order to stand. Chief Justice John Roberts and Justice Amy Coney Barrett unexpectedly joined Justice Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, but wrote no opinion, which is often the case in these procedural skirmishes.

Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, issued a blistering dissent that argued that Judge Amir has no power to order the restraining order and, indeed, no authority to force the executive branch to spend the funds.

As he wrote: “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? The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise. I am stunned.”