A push for stronger executive control over spending — what two co-authors and I have called “appropriations presidentialism” — has emerged as a central theme of the second Trump Administration. The Supreme Court has now made three key interventions in the resulting legal disputes. Each ruling was issued on the emergency docket, each was thinly reasoned, and each reached a debatable result on a hard question. In important respects, these rulings illustrate why the increasing centrality of the Supreme Court’s emergency docket is a problem.
Nevertheless, the Court’s opinions in these cases will shape appropriations litigation going forward. In this post, I’ll try to reconcile the Court’s rulings with a rational account of the law, putting the decisions in their best light and suggesting resolutions to some open questions.
Specifically, I’ll argue that lower courts (1) should narrowly construe the Court’s holding in Department of State v. AIDS Vaccine Advocacy Coalition that the Comptroller General has exclusive authority to enforce the Impoundment Control Act (2) should follow, in any reasonably analogous cases, the Court’s indication in National Institutes of Health v. American Public Health Ass’n (NIH v. APHA) and Department of Education v. California (DOE v. California) that grant-termination claims belong in the Court of Federal Claims (CFC) rather than federal district courts, and (3) should disregard as overbroad dicta any suggestion in AIDS Vaccine Advocacy that legal disputes over expired appropriations are necessarily moot.
I’ll begin with a brief overview of the current appropriations landscape followed by a summary of the Supreme Court’s three rulings. Then I’ll briefly address in turn the Comptroller General issue, the scope of CFC jurisdiction, and the question of mootness.
Legal Challenges to the Administration’s Actions
During his 2024 election campaign, President Trump pledged to restore presidential authority to “impound,” or refuse to spend, appropriated funds. Though Congress enacted an important statute, the Impoundment Control Act (ICA), in 1974 to limit such impoundments after President Nixon abused them, the campaign’s allies, including the current General Counsel of the Office of Management and Budget (OMB), advanced arguments that such statutory controls on nonspending are unconstitutional.
As I have argued elsewhere, this constitutional argument is mistaken and the Administration has yet to embrace it as its official position. Nevertheless, beginning on its very first day in office, the Administration took numerous steps to establish stronger executive control over spending and in particular to delay or cancel spending it considered unwise.
No doubt, some of these actions were lawful. Both OMB and the Comptroller General have understood the ICA to allow “programmatic delays” — pauses in spending while a new administration determines how it wants to carry out a program or exercise discretionary authorities. In an action the Comptroller General approved, the Biden Administration paused certain border wall spending on this basis; some Trump Administration delays might fit within this authority as well.
But temporarily delaying spending is one thing; declining to spend appropriated funds at all is another. The ICA makes clear that the executive branch normally must prudently employ appropriated funds to carry out statutory purposes, whether it likes those purposes or not.
Furthermore, applicable statutes and regulations often impose substantive and procedural constraints on the cancellation of grants, contracts, and other commitments. Title VI of the Civil Rights Act, for example, generally requires a finding of discrimination before cutting off funds to a university, and even then it requires that any cutoff apply only to the university program or subcomponent that acted unlawfully. Insofar as the Administration impounded funds without statutory authorization or defied such limitations on funding cutoffs and denials, it acted unlawfully.
Historically, Congress has jealously guarded its power over spending, and indeed that power is an especially important aspect of checks and balances given the breadth of authority claimed by modern presidents. Yet the Republican majorities in the House and Senate have so far, by and large, favored their partisan interests in supporting the President’s agenda over their institutional interest in preserving congressional authority. Aggrieved parties have therefore turned to the courts, and the resulting disputes have bubbled up to the Supreme Court several times.
The Supreme Court’s Emergency Decisions
In spending-related cases, the Supreme Court has issued three key emergency rulings this year.
First, in DOE v. California, the Court intervened in a suit involving certain education-related grants. The district court in the case had issued a temporary restraining order (TRO) barring the government from terminating the grants and requiring it (in the Supreme Court’s paraphrase) to “pay out past-due grant obligations and to continue paying obligations as they accrue.” The Supreme Court, however, characterized this TRO as an “appealable preliminary injunction” and stayed the order while it was appealed.
To justify this stay, the Court offered only a terse per curiam opinion. There, the majority observed that “the District Court’s ‘basis for issuing the order [is] strongly challenged,’ as the Government is likely to succeed in showing the District Court lacked jurisdiction to order the payment of money under the [Administrative Procedure Act].” As the majority acknowledged, “a district court’s jurisdiction ‘is not barred by the possibility’ that an order setting aside an agency’s action may result in the disbursement of funds.” Nevertheless, the majority concluded that “the APA’s limited waiver of [sovereign] immunity does not extend to orders ‘to enforce a contractual obligation to pay money’ along the lines of what the District Court ordered here.”
According to the majority, such claims belonged instead in the CFC under the Tucker Act, a nineteenth-century statute that gives that court jurisdiction over damages suits based on the breach of an “express or implied contract with the United States” or the violation of a statute or constitutional provision that mandates payment. In dissent, Justice Kagan questioned this holding, observing (for reasons I’ll come back to) that “the Court’s reasoning is at the least under-developed, and very possibly wrong.”
A few months later, the Court doubled down on DOE v. California’s Tucker Act holding, concluding in NIH v. APHA that challenges to “the Government’s termination of various research-related grants” again belonged in the CFC. On this basis, the Court stayed a district court order insofar as it required continuing payments pursuant to grants. At the same time, the Court denied a stay with respect to the district court’s vacatur of agency guidance documents governing grant awards.
To support these jurisdictional conclusions, the Court’s order offered essentially no reasoning beyond a citation to DOE v. California, and Justice Barrett was the only Justice to agree with both results (the reviewability of the guidance and the unreviewability of the terminations). In a solo concurrence, Justice Barrett explained that “[b]oth logic and law” supported splitting the claims. In her view, “[v]acating the guidance does not reinstate terminated grants,” so the questions required separate treatment, and those claims moreover were “legally distinct” because “vacating the guidance does not necessarily void decisions made under it.”
In a third ruling in late September, the Court granted a stay pending appeal in AIDS Vaccine Advocacy. This litigation challenged the Administration’s failure to disburse certain foreign aid following its dismantling of the U.S. Agency for International Development (USAID). At an earlier stage, the same case had produced another emergency stay request; in that appeal, the Court denied a stay while urging the district court to “clarify” its order. This time, the stay request involved $4 billion in aid that the Administration had proposed to rescind with just weeks to go in the fiscal year. The district court had ordered the Administration to obligate these funds before they expired on October 1, but the Supreme Court stayed that order.
Under the Impoundment Control Act, the President may not cancel spending on his own but generally may propose a legislative “rescission” (i.e., cancellation) of funding and delay the spending for a forty-five-day period while Congress considers the proposal. Hoping to run out the clock on the $4 billion in aid, the Trump Administration proposed this rescission within forty-five days of the fiscal year’s end and then paused the expenditures pending a congressional vote. Though interpreting the ICA to allow such “pocket rescissions” is questionable (a point I’ll also come back to), the statute empowers the Comptroller General, a congressional officer, to sue “if, under [the ICA], budget authority is required to be made available for obligation and such budget authority is not made available for obligation.”
Though it did not say so explicitly, the majority apparently concluded that the Comptroller General’s litigation authority is exclusive. The Administration had argued that plaintiffs’ suit to enforce appropriations laws “leap-frogg[ed] the Comptroller General,” and the majority, for its part, observed that “[t]he Government, at this early stage, [had] made a sufficient showing that the Impoundment Control Act precludes [the challengers’] suit, brought pursuant to the Administrative Procedure Act, to enforce the appropriations at issue here.” In dissent, Justice Kagan again questioned the Court’s reading of the statute; she noted that the ICA seemed to expressly preserve private suits. At the same time, Kagan argued that the Court’s claim to have expressed only a “preliminary view” of the merits rang hollow because “[t]he effect [of the Supreme Court’s order] is to prevent the funds from reaching their intended recipients — not just now but (because of their impending expiration) for all time.”
Open Questions
The numerous court challenges to the Trump Administration’s spending-related actions have raised a host of difficult questions. These three emergency rulings are just the tip of the iceberg. Nevertheless, they each reached consequential, and highly debatable, conclusions based on minimal reasoning. I will confine myself here to addressing three points of ambiguity about how to apply these decisions going forward:
- How broad is the Comptroller General’s exclusive litigation authority?
- How broad is the CFC’s exclusive jurisdiction over grant-related challenges?
- Was Justice Kagan correct to say spending challenges are moot after appropriations expire?
Rationalizing the decisions in light of the underlying legal authorities and relevant separation of powers considerations should produce the following answers: (1) not very broad, (2) broad enough to cover closely analogous cases, and (3) not necessarily.
1. Can Private Litigants Challenge Impoundments?
The Supreme Court’s holding in AIDS Vaccine Advocacy regarding litigation of impoundments should not extend beyond that case’s immediate context.
The Court’s Holding and Why It’s Debatable
As noted earlier, the only funds at issue in the AIDS Vaccine Advocacy stay request were the $4 billion subject to President Trump’s attempted pocket rescission.
Under the best reading of the ICA, pocket rescissions should not be lawful in the first place. Even when the President proposes a rescission, the statute requires that funds “be made available for obligation” unless Congress enacts rescission legislation. The statute thus puts strong emphasis on ensuring obligation of funds absent new legislation, not on ensuring that a proposal results in a pause, let alone a de facto cancellation of funds. Allowing rescission proposals to cancel funds without congressional action turns this statutory scheme on its head.
The Administration nevertheless argued to the Supreme Court that intervening to require the expenditures would disrupt the statutory scheme. Creatively reimagining the statute’s limits on impoundments as tools for accomplishing them, the Administration asserted that “the ICA’s procedures ensure that the political branches — not courts or private parties — remain in control of disputes over the President’s failure to obligate or spend funds authorized by Congress for appropriation.”
At least one lower court, moreover, had accepted this view. At an earlier stage of the litigation, a split D.C. Circuit panel rejected arguments that private parties could sue under the APA to “enforce[e] the 2024 Appropriations Act” that provided the foreign aid; that court held that the ICA’s “complex scheme” and provision for suits by the Comptroller General precluded such private suits. To avoid en banc review, however, the panel amended its opinion to bar only APA suits directly enforcing the ICA. The amended opinion stated that “we need not and do not decide whether the ICA precludes suits under the APA to enforce appropriations acts” — even though the original panel opinion had resolved exactly that question.
As Justice Kagan explained in dissent, none of these arguments should have been persuasive even in the pocket rescission context of AIDS Vaccine Advocacy. The statute, indeed, expressly contradicts them. In an apparent effort to keep litigation pathways as open as possible, the ICA states that “nothing” in that law “shall be construed as . . . affecting in any way the claims or defenses of any party to litigation concerning any impoundment.” This language should have preserved APA suits like the one in AIDS Vaccine Advocacy.
Putting the Decision in its Best Light
The Court’s ruling in AIDS Vaccine Advocacy thus appears questionable at best. To the extent it holds water at all, however, the majority’s reading of the ICA is most persuasive with respect to funds that, like the $4 billion at issue in the stay request, are subject to a pending rescission proposal. The Administration has a point that funds subject to such proposals are at that point enmeshed in a fast-moving political process, and it is also true that Congress has remedies of its own to defeat pocket rescissions if it chooses: It can simply extend the budget authority at issue in the next annual appropriations, as indeed it has done in the past when administrations attempted this maneuver.
That view also has the strongest basis in the statutory text. Under the ICA, the Comptroller General only has litigation authority “[i]f, under [the ICA], budget authority is required to be made available for obligation and such budget authority is not made available for obligation.” Strictly speaking, as Professor David Super has observed, funds are “required to be made available for obligation” under the ICA itself only when, as in the case of a pocket rescission, the President has proposed to rescind funding and Congress has failed to approve the rescission. In other cases, the spending obligation in principle comes instead from the underlying appropriations statutes. To be sure, the ICA’s limitations on impoundments help make clear that spending in such appropriations laws is generally obligatory, yet the statutory disclaimer should at least preserve private litigants’ claims with respect to those statutes as opposed to the ICA’s specific mechanisms for impoundments.
Given that (1) the emergency stay only involved funds subject to a rescission proposal and (2) that context is legally distinguishable from other impoundment challenges, lower courts should not understand the Supreme Court’s holding to extend beyond that context. Courts, in other words, should not understand the Supreme Court to have embraced the broader reasoning in the original D.C. Circuit panel decision.
Problems with Understanding the Ruling More Broadly
To the extent courts are inclined to read AIDS Vaccine Advocacy’s holding more broadly, practical problems with such a reading should give them further pause. Far from affording a clearly viable alternative remedy for impoundments, litigation by the Comptroller General would raise a host of untested questions.
To begin with, the Comptroller General’s litigation authority might not even be constitutional. Removing the Comptroller General requires impeachment or a joint resolution of Congress, meaning a resolution passed by both houses and signed by the President. But if the Comptroller General’s litigation authority is an executive authority, then the impossibility of removing him without congressional approval is an unconstitutional infringement of the President’s executive power. For this reason, the Supreme Court held in 1986 in Bowsher v. Synar that the Comptroller General could not constitutionally perform executive budget functions.
On the other hand, if the Comptroller General is a congressional agent, as is often assumed, then his authority to litigate spending questions may depend on whether Congress itself would have standing to sue. The Supreme Court, however, has generally been skeptical about legislative standing, although the D.C. Circuit held in 2020 that the House of Representatives as a whole does have standing to challenge unlawful spending.
One problem with the emergency docket is that the Court may reach consequential conclusions without addressing, or perhaps even considering, important dimensions of the issues. Having shunted certain claims to the Comptroller General, the Court should feel bound to uphold the Comptroller General’s litigation authority; to do otherwise would mean that AIDS Vaccine Advocacy set up an unfortunate bait and switch. To mitigate such problems, however, lower courts should in any event keep open the alternative path of private litigation except in suits that directly implicate the ICA’s impoundment procedures.
2. What Grant-Related Claims Belong in the CFC?
A second key feature of the Supreme Court’s emergency rulings is their determination that certain grant-related claims belong in the Court of Federal Claims rather than federal district court. This holding, too, should be understood in light of its litigation context, but in this case that should mean understanding it to establish CFC jurisdiction over closely analogous grant terminations and nonpayments.
Legal and Practical Questions Regarding CFC Jurisdiction
The Court’s conclusion on this point was again surprising and, as Justice Kagan put it in dissent, “very possibly wrong.” The CFC generally holds exclusive jurisdiction over breach of contract suits against the United States seeking more than $10,000 in damages. (The CFC and federal district courts have concurrent jurisdiction over suits for smaller amounts.) In many cases addressing CFC jurisdiction, however, lower courts have not understood grants as contracts.
For one thing, a contract requires consideration, and the CFC has held that “consideration [in a government contract] must render a benefit to the government, and not merely a detriment to the contractor.” In addition, according to some CFC decisions, “generalized” public benefits, as opposed to provision of goods or services, do not satisfy this requirement. As one opinion puts it, grants from the government for “worthy project[s],” even those with “incidental benefit[s] to the government,” are not contracts supporting Tucker Act jurisdiction.
In a second problem, even when suits implicate government contracts, a number of courts have rejected Tucker Act jurisdiction because the rights at issue stemmed mainly from underlying statutes and regulations, rather than the contract itself. Suits of that nature may proceed in federal district courts because the Supreme Court held in Bowen v. Massachusetts that the APA permits monetary relief that arises as a “by-product of [the] court’s primary function [in such cases] of reviewing” the challenged agency action.
Based on such reasoning, lower courts upheld APA jurisdiction in some challenges to Trump Administration grant terminations. In DOE v. California and NIH v. APHA, the Supreme Court held otherwise, at least with respect to the grants at issue in those cases, but it did not explain why it rejected lower courts’ reasoning, nor even whether its holdings apply to all grant terminations or only those with certain features.
These technical holdings matter: They may create significant practical problems. The CFC can only hear claims under laws and contracts that are “money-mandating,” i.e., that mandate payment, and it can only hear suits by contracting parties; those seeking other remedies or with more indirect injuries cannot get help from the CFC. Even worse, because awarding damages in CFC litigation will take time, grantees who lack other funding may have to terminate their activities or even go out of business while waiting for the CFC to rule. To the extent Congress wished to support the activities at issue and the Administration unlawfully cancelled them, such disruptions are an outrage.
Compounding these difficulties, Justice Barrett’s controlling reasoning in NIH v. APHA requires grantees to split their claims by litigating policy challenges in district courts and damages claims in the CFC. And though Barrett doubted its applicability in that case, a statute might preclude CFC jurisdiction over claims arising out of facts being adjudicated elsewhere. To the extent litigants cannot proceed with both sets of claims simultaneously, they will have to proceed sequentially instead, compounding their delays in getting relief.
Potential Upsides to the Court’s Approach
The Court’s holdings, then, are both legally debatable and practically disruptive. At the same time, however, they may carry some countervailing virtues.
Efforts to restore funding through APA claims and injunctive remedies have set up recurrent, high-stakes clashes over government policy and required courts to resolve them on an accelerated timeframe. In some cases, they have asked courts to order the performance of quintessentially administrative functions, like disbursing billions of dollars in foreign aid or determining appropriate recipients for research grants, that normally fall outside courts’ legitimate institutional competence.
What is more, an administration determined to drag its feet in such cases can effectively nullify court orders, exposing the limitations of judicial authority in the process. Courts have regularly encountered such difficulties in ordinary administrative law cases; they could be even more acute in high-stakes suits challenging central presidential priorities.
And as a further difficulty, funding-related APA suits often involve severe time pressure, not only because the petitioners are seeking an immediate return to the status quo but also because the appropriations at issue may soon be expiring.
These problems might sometimes be surmountable. As discussed below, some lower courts have held that they may extend budget authority beyond its expiration with a preliminary injunction. Alternatively, litigants might argue that a permanent, indefinite appropriation called the Judgment Fund can cover the remedies they seek. Although this appropriation only covers monetary awards and not the costs of taking specific actions, the Comptroller General has understood it to cover judgments in APA suits that are akin to damages in the sense of “requir[ing] the payment of ‘specified sums of money to certain parties’”; the Comptroller General thus concluded, for example, that the fund covered payments ordered as compensation for seized property that was lost or damaged.
These workarounds, however, carry their own limitations and drawbacks. As discussed in the next section, extending budget authority could raise complicated questions, even if it is an available option in some cases. As for the Judgment Fund, employing it in this context would be a stretch. Even assuming the Comptroller General’s view of APA awards is correct, a court order requiring the restoration of terminated grants would likely go beyond directing “specified sums” to “certain parties.” It would instead require the agency to take ongoing actions with its current appropriations, and “the Judgment Fund,” as the Comptroller General acknowledges, “was not created to cover the cost of judgments or settlements that are injunctive in nature, that is, that either direct the government to perform, or not to perform, some particular action.”
Whatever the answers to these questions, CFC litigation should sidestep them and provide an effective vehicle for resolving key legal questions regarding executive authority over grants and other appropriations. Whereas courts exercising jurisdiction under the APA cannot award “money damages,” the CFC can, so the Judgment Fund can cover its awards. As a result, the court can proceed deliberately, without intense time pressure or any problem of potential mootness, in considering what relief to provide.
Furthermore, the CFC’s monetary remedy should be readily enforceable, and it would have real bite in this context. Although money damages cannot solve the problem noted earlier of suspended activities and failed enterprises, they can make a mockery of any cost-saving rationale that supposedly justified the executive branch’s actions in the first place. Indeed, the State of Maryland and twenty-three other jurisdictions recently filed a lawsuit in the CFC seeking damages based on the Administration’s cancellation of billions of dollars in clean energy funds.
Finally, even some nonmonetary remedies, albeit of limited scope, may be available in the CFC. “In any case within its jurisdiction,” a jurisdictional statute provides, “the [CFC] shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.”
What to Do Going Forward
In short, although it is not at all clear that the Court had such considerations in mind, its jurisdictional holdings in DOE v. California and NIH v. APHA could carry certain institutional advantages for courts. Again, however, to realize those potential benefits, lower courts must not understand the Supreme Court’s rulings to have set up another bait and switch.
In other words, to ensure that litigants can proceed with some clarity about the proper forums for their claims, courts should understand the Court’s jurisdictional holdings in DOE v. California and NIH v. APHA to apply in all other reasonably analogous cases.
To be sure, given the Court’s failure to provide any explanation regarding what made the grants in those cases contractual in character, there may be important open questions about precisely which grant-related claims fall within the Court’s holdings. But some such claims must do so, and it would be a travesty for the Court to pull the rug out once again by holding down the road, after grantees have turned to the CFC, that effectively identical claims belonged in federal district courts after all. Lower courts should not assume that the Supreme Court will behave in such a manner.
3. Are Spending-Related Suits Moot When the Underlying Appropriations Expire?
Finally, lower courts should disregard as dicta any suggestions in AIDS Vaccine Advocacy that the expiration of budget authority at the fiscal year’s end necessarily moots cases challenging a failure to exercise that authority.
The Court’s Seeming Unawareness of Lower Court Case Law
Justice Kagan addressed this point most explicitly, observing in her dissent that the Court’s stay would necessarily “prevent the funds from reaching their intended recipients . . . for all time” due to the funds’ “impending expiration.” Insofar as Kagan meant to suggest that the expiration of budget authority necessarily moots litigation regarding its validity, her assertions were at least overbroad, if not incorrect, under lower court precedent.
Going back to the Nixon era, if not earlier, lower courts have claimed an equitable power to extend budget authority with a preliminary injunction so long as the suit commenced before the budget authority expired. A Nixon-era statute even seems to confirm this judicial authority and perhaps make it self-executing. It provides: “A provision of law requiring that the balance of an appropriation or fund be returned to the general fund of the Treasury at the end of a definite period does not affect the status of lawsuits or rights of action involving the right to an amount payable from the balance.”
Open Questions in Lower Courts Going Forward
These past cases might be distinguishable in some way. Perhaps, for example, extending budget authority as a matter of equity requires actually issuing a preliminary injunction. In other words, maybe courts need to extend spending deadlines explicitly and base their orders to that effect on an appropriate weighing of relevant equitable considerations. To the extent the district court issued no such order in AIDS Vaccine Advocacy, or if that case was otherwise distinguishable from relevant precedents, Justice Kagan’s statement might technically have comported with past lower court decisions. It did so, however, only with respect to the specific circumstances in the USAID litigation.
It is also possible that lower courts were wrong to assume this equitable power in the first place. Perhaps an equitable remedy is unnecessary given Congress’s own authority to extend lapsed appropriations, or perhaps the Constitution’s strict command that spending requires a current appropriation forecloses judicial extensions of expired funds. Under Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. and Trump v. CASA, Inc., the answer to these questions might depend on whether litigants can identify close analogues in historical equity practice. On the other hand, the statute preserving “lawsuits” and “rights of action” might provide the necessary authority for such remedies.
All those questions, however, remain open. If the Supreme Court is going to overturn longstanding lower court precedent, it owes those courts an explanation. Lower courts should not understand the Supreme Court to have repudiated their own precedent in an emergency ruling that gave no consideration to the issue and indeed showed no awareness of it.
* * *
As a result of the second Trump Administration’s concerted effort to establish executive control over spending, appropriations-related questions have ended up in court to an unprecedented extent. Although many appropriations questions may be better suited to political than judicial resolution, courts will have to muddle through unless and until Congress overcomes its current torpor.
In applying the Supreme Court’s recent perplexing emergency rulings, lower courts should (1) allow private APA suits challenging impoundments unless they involve funds subject to a rescission proposal, (2) take the Supreme Court at its word in determining that the Court of Federal Claims can address grant terminations and nonpayments similar to those in the cases the Court considered, and (3) ignore the Court’s suggestion in dicta that funds necessarily expire when the fiscal year ends. These conclusions would best align the Court’s conclusions with the underlying legal authorities while also helping maintain judicial support for Congress’s immensely important power of the purse.
Zachary S. Price is a Professor at the University of California College of the Law, San Francisco. His book Constitutional Symmetry: Judging in a Divided Republic was published by Cambridge University Press in 2024.