John Roberts Just Rewarded Donald Trump for a Blatant Violation of Law. Again.

But the government has kept much of the remaining money on hold. Congress rescinded some of it at Trump's behest in July , but the administration has continued to withhold about $4 billion worth of aid that Congress still intends to be spent. Lawmakers had committed this money to programs focusing on climate resilience, democracy-building, election protection, and gender equality. The government, though, now says these issues are not “aligned with the foreign policy of the president.” So it refuses to disburse the money as Congress instructed.

The Trump administration's justification for this clawback is, frankly, diabolical. Under the Impoundment Control Act, the president cannot withhold (or “impound”) appropriations without congressional approval. To obtain this approval, he must ask Congress to rescind the money by legislation. If Congress does not act within 45 days, the funds “shall be made available for obligation.” This process is the only lawful mechanism by which a president can refuse to spend appropriations.

But Russell Vought, Trump's Office of Management and Budget director, thinks he has found a loophole in the Impoundment Control Act, and hatched a scheme to test it out. Under his guidance, the government waited until fewer than 45 days remained in the federal fiscal year, which ends on Sept. 30. On that date, many appropriations—including this $4 billion in aid—will expire. Once inside this 45-day window, Trump asked Congress to rescind the foreign aid. Now Vought claims that the government can decline to spend the money until Sept. 30, at which point it will vanish. The White House has boasted of this as a pocket rescission .

The problem with this tactic is that, under any remotely sensitive reading of the law, it is blatantly unlawful. As the Government Accountability Office has concluded , the Impoundment Control Act clarifies that appropriations have not been legally rescinded until Congress consents to the money's revocation. Until that point, the funds remain “available for obligation,” and the president has a constitutional obligation to “faithfully execute” them by disbursing them as instructed. The Trump administration's interpretation would transform the Impoundment Control Act from a limit on rescissions to a blank check for rescissions within 45 days of the fiscal year's end. It would also amount to a line-item veto of any spending the president dislikes, which the Supreme Court has emphatically ruled to be unconstitutional. The entire plot violates both constitutional structure and clear statutory language that requires the executive branch to release the funds appropriated by Congress.

In light of this brazen illegality, US District Judge Amir Ali ordered the government to start paying out the $4 billion on Sept. 3. Ali's meticulous opinion eviscerated the Trump administration's convoluted attempts to transmogrify the Impoundment Control Act into a line-item veto. (The judge also noted that government lawyers misquoted the statute itself “to reverse its meaning,” an alarmingly unethical ploy.) Congress, Ali explained, stated that the funds in question “shall be made available in the amounts specifically designated,” a directive that left the executive branch no discretion to impound them. And SCOTUS has long held that a court may order the government to “spend appropriated funds where the relevant statutes required that the funds be spent.” Drawing on this authority, Ali found Trump's impoundment “arbitrary and capricious” and mandated his disbursement.

Predictably, the government appealed. After the DC Circuit denied a stay, the government begged the Supreme Court for emergency relief. (Ali anticipated this gambit, calling out the administration for manufacturing a phony “time crunch” as a cynical “litigation strategy.”) Given the ticking clock, the plaintiffs asked SCOTUS not to freeze Ali's order—even for a few days through an “administrative stay” while all the justices mulled the request. But the chief justice granted such a stay on Tuesday anyway. The move was a bleak indication of where the court was heading; after all, as Ali wrote : “A stay of any length would directly contradict Congress's statutory command each day that it is in effect.” By halting the injunction, Roberts let Trump keep running down the clock. Every minute closer to Sept. 30 gives the administration more cover to claim it doesn't have enough time to disburse the funds.

The one glimmer of hope in this case has long been the Supreme Court's decision , back in March, to make Trump pay out $2 billion in foreign aid. But that case, unlike this one, involved “work already completed,” a factual difference that may have swung some votes. It was also 5–4. And in the months since, the court has created new obstacles for litigants seeking money owed to them by the government. Justice Amy Coney Barrett, the swing vote in all these decisions, seems to have soured on district courts' ability to make the Trump administration pay up.

If the Supreme Court's conservatives do approve this “pocket rescission,” its ruling will set a precedent that Trump is certain to exploit in the future. It will also put congressional Democrats on notice that this president cannot be trusted to carry out the appropriations that they negotiate with Republicans—at least until major reforms are enacted into law (and maybe not even then depending on how the Supreme Court is feeling). Right now, Democrats are still trying to decide what they can bargain for, including health insurance subsidies , in the next government funding fight. But if they don't include ironclad provisions outlawing impoundment under all circumstances, those concessions won't be worth the paper they're printed on.

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