A man pulls away tape covering the name of the U.S. Agency for International Development in Washington on Feb. 7. (Astrid Riecken for The Washington Post)
Trump administration lawyers are arguing that a temporary restraining order issued by a federal judge last week does not prevent State Department officials from suspending foreign assistance programs, the latest effort by the administration to defend its wide-reaching foreign aid cuts from legal challenges.
The court order in question, issued Thursday by the U.S. District Court for the District of Columbia, temporarily blocked the implementation of President Donald Trump’s executive order to suspend foreign aid, citing the “shock wave” caused by the action.
The executive order, signed the day Trump took office, imposed a far-reaching 90-day pause on U.S. foreign aid programs until they could be reviewed to ensure “programmatic efficiency and consistency with United States foreign policy.”
In a court filing late Tuesday, administration lawyers argued that officials had the legal authority to freeze foreign aid even without the executive order - and would therefore continue to suspend aid programs unless the court offered clarification.
The filing followed a request by U.S. District Judge Amir Ali to show that the administration was complying with his temporary restraining order, which required administration officials to temporarily lift their freeze on U.S. aid and development programs abroad.
In response to a lawsuit brought by two global health nonprofits, the judge ruled that administration officials “have not offered any explanation for why a blanket suspension of all congressionally appropriated foreign aid … was a rational precursor to reviewing programs.” As such, the judge ordered officials to temporarily to pause the enforcement of Trump’s executive order.
In Tuesday’s filing, administration lawyers argued that officials did not have to rely on Trump’s executive order to pause the funding, and so the temporary restraining order did not prevent them from pursuing the cuts.
Administration lawyers argued that officials had the legal authority to suspend foreign aid programs from existing statutes and regulations. They interpreted the court’s temporary restraining order (TRO) as remaining “silent” on those other sources of legal authority, requesting further clarity from the court over whether that interpretation was incorrect.
“Defendants have not read the TRO to temporarily restrain the exercise of those authorities,” they wrote.
Michael Dorf, a constitutional law professor at Cornell Law School, said the administration’s argument was “pretty clearly inconsistent with the spirit of the court’s order.”
“The government asserts they have the authority to make these determinations, quite apart from the executive order - but that seems already to have been taken into account,” Dorf said in a phone interview Wednesday, pointing to a line in the temporary restraining order in which the judge specifies that he is not blocking the executive order itself, but the actions of officials.
“So I think the judge has already decided that the authorities on which the government is relying are not sufficient - at least in respect to the preliminary injunction,” he said.
The State Department did not immediately respond to an email request early Wednesday over whether it had restored any of the paused foreign aid programs, following the temporary restraining order.
In an accompanying declaration Tuesday, the U.S. Agency for International Development’s newly appointed deputy administrator, Peter Marocco, said that since Jan. 20, the department had terminated 733 foreign assistance-fund grants and suspended approximately 6,824 grants. “USAID has broad authority under the specific instruments themselves and existing statutes and regulations to suspend and terminate foreign assistance funding obligations,” he wrote.
Trump’s executive order, freezing more than $60 billion in foreign assistance, has had wide-ranging impacts that have rattled humanitarian organizations worldwide, risking devastation for countries on the brink of famine, leaving African anti-terrorism programs in limbo and threatening billions of dollars in income for U.S. farms and businesses.
Despite a State Department waiver for emergency food aid, those provisions were still delayed around the world in the confusion, a USAID inspector general wrote in a blistering report - a day before he was dismissed.
The restraining order was the second major obstacle faced by the administration in its attempt to gut foreign aid funding. On Feb. 7, a federal judge temporarily barred Trump from putting 2,200 workers on paid leave.
