by
Alex
Wong/Getty
Images)
Here’s
a
puzzle:
When
does
a
Supreme
Court
justice
believe
courts
can
review
executive
branch
decisions?
The
answer,
at
least
for
Justice
Alito,
appears
to
be
“whenever
a
Democrat
is
president,
but
only
then.”
There
is plenty of commentary making the
rounds regarding
yesterday’s 5-4
Supreme
Court
decision confirming
that
of
course
a
judge
can
issue
a
Temporary
Restraining
Order
to
maintain
the
status
quo
and
require
USAID
pay
out
the
money
that
it
owes
to
contractors
for
work
already
done.
But
beneath
the
straightforward
legal
question
lies
a
revealing
pattern
of
inconsistency
from
some
of
the
Court’s
conservatives.
The
eye-opening
thing
about
Alito’s
dissent
is
how
completely
it
contradicts
positions
he
took
just
months
ago.
And
not
in
subtle
ways
—
we’re
talking
about
fundamental
questions
of
judicial
power
that
Alito
seems
to
view
entirely
differently
depending
on
which
party
controls
the
White
House.
To
understand
this
claim
—
and
how
there’s
basically
no
other
explanation
—
we
need
to
look
at
what
actually
happened
here.
Elon
Musk
and
his
DOGE
crew
went
into
USAID
and
halted
nearly
all
payments,
which
created
an
interesting
legal
problem
that
had
been
mostly
theoretical
prior
to
the
current
administration.
Congress
has
“the
power
of
the
purse”
and
requires
the
executive
branch
to
spend
money
as
directed.
Not
spending
appropriated
money
(known
as
“impoundment”)
is pretty
clearly
illegal.
While
this
has
kicked
off
a
bunch
of
lawsuits,
the
one
at
issue
here
involves
two
contractors
—
AIDS
Vaccine
Advocacy
Coalition
and
the
Global
Health
Council
—
who
pointed
out
that
they
already
completed
the
work
for
which
they
have
contracts,
and
they
are
owed
money
on
those
contracts.
Musk
freezing
the
payouts
violated
the
law.
The
judge
in
the
District
Court,
Amir
Ali,
agreed
that
this
seemed
like
a
pretty
big
issue
and
issued
a
Temporary
Restraining
Order.
TROs
are
supposed
to
be
used
in
rare
situations,
mainly
to
return
things
to
the
status
quo
to
avoid
irreparable
harms.
In
this
case,
contractors
not
getting
paid
by
the
US
government
for
work
they
already
performed,
on
contracts
and
appropriations
already
blessed
by
Congress
and
the
executive
branch,
could
do
real
damage.
And
thus,
Ali
ordered
them
to
proceed
to
abide
by
the
contracts
and
the
constitutionally
required
situations
in
which
the
executive
branch
does,
in
fact,
pay
out
the
money
that
Congress
has
appropriated.
However,
after
doing
so,
the
White
House
ignored
the
order
and
did
not
pay
out
the
money.
Judge
Ali
brought
the
DOJ
back
into
court
two
weeks
later
to
ask
WTF,
followed
by
issuing
an
order
that
they
pay
out
the
money
they
owed
by
that
very
night.
This
is
when
the
DOJ
tried
to
appeal,
which
quickly
bumped
its
way
up
to
the
Supreme
Court.
With
little
time
to
spare,
Chief
Justice
Roberts
issued
an
“administrative
stay”
on
the
TRO,
basically
putting
it
on
hold.
This
administrative
stay
created
an
oddity
worth
examining.
The
whole
point
of
both
TROs
and
administrative
stays
is
generally
to
“preserve
the
status
quo”
while
the
court
can
look
at
things
more
closely.
But
which
status
quo?
The
one
where
the
government
follows
the
law
and
pays
its
bills
to
contractors
who
already
did
the
work?
Or
the
one
where
Musk’s
DOGE
team
is
illegally
impounding
funds
denying
lawfully
contracted
work
from
being
paid
for?
It
sure
feels
like
the
former
is
the
only
status
quo
worth
preserving.
After
sitting
on
the
issue
for
nearly
a
week,
the
Court
finally
ruled
5-4
in
support
of
Judge
Ali’s
basic
position,
though
they
told
him
to
come
up
with
a
new
implementation
plan
since
the
original
payment
deadline
had
passed.
But
the
really
appalling
part
isn’t
the
majority
ruling
—
it’s
Alito’s
dissent,
which
reads
like
it
was
written
in
an
alternate
universe
where
a
bunch
of
other
opinions,
many
of
which
Alito
supported,
don’t
exist.
Alito’s
dissent
starts
with
what
might
charitably
be
called
selective
amnesia,
both
of
the
facts
of
this
case,
as
well
as
recent
Supreme
Court
jurisprudence
that
he
supported:
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.
Stunned,
are
you?
Let’s
pause
here
and
note
what
Alito
is
doing.
He’s
framing
this
as
a
question
of
judicial
power
over
executive
spending.
Which
would
be
a
reasonable
framing,
if
not
for
two
rather
enormous
elephants
in
the
room:
First,
Congress
has
already
directed
this
spending,
as
its
power
under
the
Constitution.
Second,
Alito
himself
has
repeatedly
insisted
that
courts
must
enforce
such
congressional
directives
against
presidential
overreach
—
at
least
when
Democrats
are
in
office.
Look,
I
know
some
people
(including
Chief
Justice
John
Roberts)
will
get
mad
that
I
suggest
Alito
is
an
extreme
partisan,
but
that
paragraph,
combined
with
some
recent
rulings
that
went
in
the
other
direction
when
Joe
Biden
was
President,
seem
to
make
it
pretty
clear
that
Alito’s
guiding
philosophy
is
“When
Republicans
are
in
power,
the
president
is
a
king;
When
Democrats
are
in
power,
presidents
have
no
power
at
all.”
Let’s
call
out
two
previous
rulings,
both
written
by
the
Chief
Justice,
but
to
which
Alito
readily
signed
on.
First
was
Biden
v.
Nebraska,
the
case
in
which
the
Supreme
Court
said
that the
President
has
no
authority
to
cancel
student
loan
debt without
an
act
of
Congress.
In
that
case,
the
Court
repeatedly
made
clear:
the
executive
branch
has
zero
authority
to
reinterpret
or
ignore
an
act
of
Congress,
especially
involving
funds.
As
Roberts
wrote
in
that
case,
and
which
all
of
the
Justices
in
the
dissent
on
yesterday’s
case
agreed
to:
The
dissent
is
correct
that
this
is
a
case
about
one
branch
of
government
arrogating
to
itself
power
belonging
to
another.
But
it
is
the
Executive
seizing
the
power
of
the
Legislature
Fast
forward
to
the
present
USAID
case,
and
suddenly
Alito
is
“stunned”
that
a
district
court
would
prevent
the
Executive
from
seizing
Congress’s
power
of
the
purse.
The
contradiction
couldn’t
be
more
glaring.
So,
in
the
student
loan
case,
Alito,
Thomas,
Gorsuch
and
Kavanaugh
were
insistent
that
the
executive
branch
may
not
“seize
power”
from
the
Legislature.
The
same
ruling
also
stated:
Among
Congress’s
most
important
authorities
is
its
control
of
the
purse. U.
S.
Const.,
Art.
I,
§9,
cl.
7;…
It
would
be
odd
to
think
that
separation
of
powers
concerns
evaporate
simply
because
the
Government
is
providing
monetary
benefits
rather
than
imposing
obligations.
And
yet
in
the
current
case,
these
same
justices
suddenly
find
it
“stunning”
that
a
court
would
enforce
Congress’s
power
of
the
purse
against
executive
overreach.
Did
Alito
and
the
others
just
forget
the
Biden
case?
Or
how
about
this
part
of
that
same
ruling:
…
our
precedent—
old
and
new—requires
that
Congress
speak
clearly
before
a
Department
Secretary
can
unilaterally
alter
large
sections
of
the
American
economy.
Does
that
not
apply
equally
in
this
case?
Then
why
is
Alito
somehow
stunned
that
the
lower
court
made
the
same
ruling
that
Alito
agreed
to
less
than
two
years
ago?
Okay,
so
maybe
that’s
too
far
back
in
history.
Let’s
consider
last
summer’s ruling
in
the
Loper
Bright
case,
that
got
rid
of
Chevron
deference.
This
case
was
also
about
separation
of
powers
and
whether
the
judiciary
has
the
right
to
step
in
and
overrule
the
executive
branch.
In
this
case,
which
again
came
out
just
months
ago,
Alito
enthusiastically
endorsed
the
judiciary’s
authority
to
check
executive
power.
Yet
now
he’s
“stunned”
that
a
district
court
would
enforce
congressional
appropriations
law
against
executive
impoundment.
Even
more
tellingly,
Alito’s
dissent
summary
in
his
opening
paragraph
strategically
omits
crucial
facts
—
that
Congress
had
appropriated
these
funds,
contracts
were
signed,
and
work
was
completed
—
instead
framing
it
as
a
judge
arbitrarily
“compelling”
government
payment.
Stunning!
But
not
the
way
Alito
thinks.
It’s
Alito’s
blatant
partisanship
that
should
be
seen
as
stunning.
In
Loper
Bright,
the
conservative
wing
of
the
Supreme
Court
was
unanimous
that
the
judiciary
must
always
check
the
executive
when
it
exceeds
authorities
granted
by
Congress.
In
that
ruling,
which
again
Alito
joined,
Roberts
emphatically
made
clear
that
the
judicial
branch
is
the
interpreter
of
the
laws:
The
Framers
also
envisioned
that
the
final
“interpretation
of
the
laws”
would
be
“the
proper
and
peculiar
province
of
the
courts.”
Id.,
No.
78,
at
525
(A.
Hamilton).
Unlike
the
political
branches,
the
courts
would
by
design
exercise
“neither
Force
nor
Will,
but
merely
judgment.”
Id.,
at
523.
To
ensure
the
“steady,
upright
and
impartial
administration
of
the
laws,”
the
Framers
structured
the
Constitution
to
allow
judges
to
exercise
that
judgment
independent
of
influence
from
the
political
branches.
Id.,
at
522;
see
id.,
at
522–524;
Stern
v.
Marshall,
564
U.
S.
462,
484
(2011).
This
Court
embraced
the
Framers’
understanding
of
the
judicial
function
early
on.
In
the
foundational
decision
of
Marbury
v.
Madison,
Chief
Justice
Marshall
famously
declared
that
“[i]t
is
emphatically
the
province
and
duty
of
the
judicial
department
to
say
what
the
law
is.”
1
Cranch
137,
177
(1803).
And
in
the
following
decades,
the
Court
understood
“interpret[ing]
the
laws,
in
the
last
resort,”
to
be
a
“solemn
duty”
of
the
Judiciary.
United
States
v.
Dickson,
15
Pet.
141,
162
(1841)
(Story,
J.,
for
the
Court).
When
the
meaning
of
a
statute
was
at
issue,
the
judicial
role
was
to
“interpret
the
act
of
Congress,
in
order
to
ascertain
the
rights
of
the
parties.”
And,
as
the
ruling
(again,
I
need
to
stress,
this
was
from
just
a
few
months
ago)
states,
the
Judiciary
often
has
to
say
no
to
the
Executive:
The
views
of
the
Executive
Branch
could
inform
the
judgment
of
the
Judiciary,
but
did
not
supersede
it.
Whatever
respect
an
Executive
Branch
interpretation
was
due,
a
judge
“certainly
would
not
be
bound
to
adopt
the
construction
given
by
the
head
of
a
department.”
Decatur,
14
Pet.,
at
515;
see
also
Burnet
v.
Chicago
Portrait
Co.,
285
U.
S.
1,
16
(1932).
Otherwise,
judicial
judgment
would
not
be
independent
at
all.
As
Justice
Story
put
it,
“in
cases
where
[a
court’s]
own
judgment
.
.
.
differ[ed]
from
that
of
other
high
functionaries,”
the
court
was
“not
at
liberty
to
surrender,
or
to
waive
it.”
Alito
signed
on
to
that
opinion
just
months
ago.
And
now
he’s
“stunned”
that
a
judge
is,
indeed,
independently
determining
that
the
executive
branch
is
violating
the
law.
There’s
a
broader
point
here
worth
considering.
The
Supreme
Court’s
role
in
our
constitutional
system
isn’t
just
about
deciding
individual
cases
—
it’s
about
establishing
clear,
consistent
principles
that
lower
courts
and
other
government
actors
can
rely
on.
When
those
principles
shift
dramatically
based
on
which
party
controls
the
White
House,
it
undermines
the
entire
project
of
constitutional
law.
Consider
what
message
this
sends
to
lower
court
judges.
If
you’re
a
district
court
judge
facing
an
executive
branch
that’s
defying
Congress
by
refusing
to
spend
appropriated
money,
what
are
you
supposed
to
do?
Follow
the
guidance
from
the
student
loan
case
that
says
you
must
vigorously
check
executive
overreach?
Or
follow
Alito’s
(thankfully
minority
opinion
for
now)
guidance
from
yesterday
that
says
you
should
be
“stunned”
at
the
very
idea
of
telling
the
executive
branch
how
to
spend
money?
The
answer,
apparently,
is
to
check
the
party
affiliation
of
the
current
president
first.
Which
is
exactly
the
kind
of
outcome
the
Founders
were
trying
to
avoid
when
they
created
an
independent
judiciary.
But
there’s
an
even
more
troubling
aspect
to
all
this.
By
making
such
nakedly
partisan
distinctions,
Alito
and
his
colleagues
are
effectively
creating
two
different
constitutions:
one
that
applies
when
Democrats
are
in
power
(featuring
strict
separation
of
powers
and
aggressive
judicial
review)
and
another
for
Republican
administrations
(featuring
expansive
executive
authority
and
judicial
deference).
This
isn’t
just
about
Alito
being
inconsistent.
It’s
about
whether
we
can
maintain
any
coherent
theory
of
constitutional
law
when
Supreme
Court
justices
treat
identical
legal
questions
differently
based
purely
on
partisan
considerations.
What
we’re
witnessing
is
not
principled
judicial
philosophy
but
raw
partisan
power
dynamics.
The
judicial
doctrines
these
justices
claim
to
revere
—
textualism,
separation
of
powers,
judicial
independence
—
appear
to
be
selectively
deployed
based
on
who
occupies
the
White
House.
The
message
couldn’t
be
clearer:
Republican
presidents
deserve
kingly
deference,
while
Democratic
presidents
require
constant
judicial
constraint.
Which
brings
us
back
to
Chief
Justice
Roberts,
who
continues
to
insist
it’s
unfair
and
inappropriate
to
suggest
his
colleagues
might
be
motivated
by
partisan
considerations
rather
than
consistent
legal
principles.
Perhaps
he’s
right
that
we
shouldn’t
question
the
motives
of
Supreme
Court
justices.
But
when
those
justices
write
opinions
that
directly
contradict
their
own
recent
precedents
based
on
nothing
more
than
which
party
holds
the
White
House,
what
other
conclusion
are
we
supposed
to
draw?
Alito
“Stunned”
By
Court
Exercising
Judicial
Power
He
Championed
&
Expanded
Just
Months
Ago
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