The Supreme Court Is Just One Vote Shy of Making Trump and Musk Kings
Donald Trump greets Justice Samuel Alito in 2019.Jabin Botsford/Washington Post/Getty
On Wednesday morning, the Supreme Court issued its first decision in Donald Trump and Elon Musk’s escalating war on government agencies and Congress’ power of the purse. The result: the court is one justice shy of letting Trump and Musk do whatever they want—at least for now.
In a 5-4 decision, the justices allowed a district court order to take effect that requires the government to pay out about $2 billion in foreign aid for work already performed. In other words, the court ordered the government not to stiff its contractors.
The Supreme Court order, however, doesn’t require immediate compliance. Instead, it instructs district court Judge Amir Ali to “clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.” In other words, the high court is giving the government grace in complying with this order, which it may now be able to dispute and draw out implementation, as any clarification made by the judge can be argued against. This comes after the government already refused multiple times to comply. So while five justices did green-light the district court, in this subtle way, the ruling gives the White House more time to dispute and draw out payment—even though these bills are now going to be paid.
And this is the good news.
The bad news is that four justices think Trump and Musk should be able to unilaterally turn off congressionally-mandated spending, including for work already done. Justice Samuel Alito, in a dissent, argued that not only can the government simply refuse to pay its bills, but that those who have been stiffed cannot sue for payment. “I am stunned,” he wrote, that the majority didn’t agree with him.
Alito’s dissent, which Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh signed onto, is not only an argument for allowing Trump and his chosen officers to ignore Congress’ power of the purse—but it is tonally a vindication for Musk, Trump, and their allies who have turned their ire on judges who have ruled against them. What is stunning, yet at this point not surprising, is that four justices have joined the MAGA alliance in maligning a district court judge who is already in the crosshairs of Musk and his followers, including in explicitly racist terms.
For weeks, Musk has ramped up his rhetoric against judges who rule against the actions of the so-called Department of Government Efficiency that he runs. “Democracy in America is being destroyed by judicial coup,” he posted on X last month. “An activist judge is not a real judge.” In the case over foreign aid spending, Musk called for impeaching Judge Ali and elevated a post pointing out that Ali is Muslim, implying that that discredits him. Then, on February 25, he attacked Ali with explicit racial stereotypes over his handling of the foreign aid case: “Tragic that Amir Ali could have been writing software instead of forcing taxpayers to fund bogus NGOs.”
Two days later, a Republican congressman introduced articles of impeachment against Ali because he disagreed with his ruling in this case. He is the third judge Republicans have filed articles of impeachment against because they have blocked one of Trump’s orders.
Rather than defend the role of the judiciary and of federal judges under such assault, Alito’s dissent piles on. “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?” Alito begins his dissent by asking. Note that it is not the lawlessness of Musk canceling $2 billion in congressionally-appropriated funds that is an affront, but the fact that a judge dared to stand up for Congress’ spending power.
Alito goes on to make a legal case for why he believes the Trump administration’s refusal to pay the government’s bills is unreviewable by the courts—a stunning argument on its own—but there is no reason to deploy the malignant tone he takes against Ali except to provide more ammunition for those targeting him and other judges who stand in the way of Trump and Musk’s unconstitutional project.
At the end of his dissent, Alito circles back to Ali to criticize him again. He calls Ali’s order—the one that five of his colleagues upheld—”an act of judicial hubris” and “self-aggrandizement of its jurisdiction.” These words feed directly into the attacks of a judicial “coup” lobbed by Musk, and the impeachment efforts of their allies in Congress.
This opinion is not the final word on this case. Instead, it is simply the Supreme Court allowing a temporary restraining order to take effect—a first step of emergency relief before the merits of the case will be decided. It is less than two months into the Trump administration, and Chief Justice John Roberts in particular may be wary of immediately appearing, for all intents and purposes, to crown Trump as King, particularly after Trump told him Tuesday night at the State of the Union, “Thank you again. Thank you again. I won’t forget.” (I think we all know why.)
When this case or another like it does reach the Supreme Court on the merits in the months ahead, will this 5-4 bulwark against autocracy hold? We’ll find out soon enough.