The Supreme Court’s Rejection of Trump End Run Is Great News | Opinion

The Supreme Court decision allowing normal legal process to proceed in the Trump administration’s foreign aid case is an important reminder that we have three equal branches of government in America.

President Donald Trump has repeatedly challenged that notion. One way was to declare that he, not Congress, has the final say over government spending. At issue before the Supreme Court was foreign aid. Trump declared in an executive order: “It is the policy of United States that no further United States foreign assistance shall be disbursed in a manner that is not fully aligned with the foreign policy of the President of the United States.”

But the president doesn’t make foreign policy alone. The Constitution says he can’t make treaties without the Senate. He can’t appoint ambassadors without the Senate. He can’t make war without Congress. Most important in this case, Congress controls the purse strings. Congress decides what we spend on, not the president.

As the Supreme Court put it in 1998: “There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Rebuffing then President Bill Clinton, the court declared that when Congress passes a law appropriating money for a purpose, the president can’t effectively repeal the law by refusing to do what it says.

Congress enacted laws to spend money aiding the suffering and succoring our sovereign friends, and Trump has effectively said, “pass what laws you will, I won’t do what they say.”

The lower court tried to freeze things long enough to sort out the applicable law. Trump wanted to continue his arbitrary destruction of programs right away, claiming he was looking for fraud. It was like a demolition squad bulldozing a widow’s house while swearing they were only looking for termites. Luckily, the Supreme Court rejected this ruse.

Trump’s assault on foreign aid has always been a matter of Trump making a presidential power grab in general and using foreign assistance as one particular test. It wasn’t about fraud or abuse. For instance, despite not looking for fraud or abuse, Trump continued aid to Israel and Egypt while cutting USAID assistance to Ukraine.

Trump’s case should be heard in court, but he shouldn’t be allowed to do whatever he likes while the case is pending. It is legally routine that when it looks like someone is doing something that breaks the law, the courts tell that person to stop doing it while the court sorts it out. This avoids irreparable harm to the victim. The Supreme Court agreed. It has asked the lower court judge to be more specific with its order, and this makes sense.

The alternative would have been catastrophic and permanent. If Trump was able to continue to arbitrarily ignore Congressional foreign aid appropriations, aid organizations would continue to collapse and living, breathing human beings would die while the courts take years to sort out who has what power.

Letting a wrecking crew finish bulldozing a house while you consider whether it has the right to do it is today’s equivalent of fiddling while Rome burns.

The alleged Roman fiddler, the Emperor Nero, used the great fire of Rome for slum clearance, erecting a golden palace for himself over the smoking ruins. He was able to do this because nobody stood in his way. Imperial power had silenced Rome’s once-glorious Senate. Nero was free to use public power for personal gain. And this is where arbitrary personal power leads.

Whether our democracy will succumb to it will depend on whether we will fight to preserve the balance of power among the legislative, executive and judicial branches of government. No branch has the right to cede its power to another branch. The Republicans in Congress have no right to lay down in the road and let any president drive a bulldozer over them. And neither does the judiciary.

The four justices who dissented from the order should think carefully. The rule of law must be a constraint even when we like what another branch is doing. It must stand during good times and bad. Some courts have pressed this point in the past. The Supreme Court majority sees that, and this is good news for us all.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer’s own.