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The Trump administration appealed to the Supreme Court late on Tuesday, again seeking to block the payments of billions of dollars of congressionally approved foreign aid. In an emergency application, lawyers for President Donald Trump urged the justices to allow the administration to freeze funding for foreign aid until at least after this year’s fiscal deadline for foreign aid spending on September 30.

The appeal, which once again places the case of USAID funding back before the high court for the second time in six months, was filed by U.S. Solicitor General D. John Sauer. Sauer, writing for the Trump administration, argued in the filing that by failing to issue a formal mandate to enforce its decision against the order from Judge Amir Ali of the U.S. District Court for the District of Columbia, the U.S. Court of Appeals for the D.C. Circuit left the Trump administration “in an untenable position.”

It is that “loophole” that the Trump administration has rushed to exploit to force the administration to once again release up to nearly $12 billion in foreign aid money that is now currently earmarked for USAID projects around the globe and is set to expire on September 30. “Respondents now want to force the Government to either rapidly obligate some $12 billion in foreign-aid funds or to go to Congress and request a supplemental appropriation,” Sauer said.

Background to the Case

Congress approved nearly $12 billion in USAID aid earlier this year, part of $65 billion in foreign assistance spending that Congress passed as part of a multi-year spending package in March. That timeline was in line with an executive order Trump signed on his first day back in the White House in January, which broadly instructed federal agencies to “pause” foreign aid payments until further review.

The order followed up on the administration’s plans to overhaul U.S. spending priorities, particularly with respect to how money flows into foreign countries around the globe. Trump has repeatedly ordered federal agencies to revisit foreign aid budgets and reallocate money where appropriate, a move critics have said amounts to a chaotic exercise that will cut money to key allies while also not saving as much as the administration might claim.

Trump’s budget order initially delayed foreign aid spending by up to 120 days, or four months. When it was blocked in February by the federal judge in D.C., Judge Amir Ali, the White House sought to fight the ruling. Ali’s order, and a subsequent one later in May, compelled the Trump administration to release up to nearly $12 billion in aid spending that was earmarked for U.S. Agency for International Development (USAID) projects around the globe.

The Trump administration, which has since ordered federal courts to vacate Ali’s orders, has requested relief, particularly in light of the appeals court ruling in Washington earlier this month. But while the appeals court acted swiftly in coming down against Ali and the other federal judge who had handled the case before her, the panel has yet to issue a formal mandate, a legal requirement for the Ali order to take full effect. As a result, Ali’s earlier order remains technically in place, and the Trump administration has less than two weeks to either challenge it or begin disbursing the money.

Can Trump Kill the Funding?

Sauer’s filing Tuesday reiterated the Trump administration’s position in arguing that because the plaintiffs did not have a legitimate “cause of action” for their lawsuit, the plaintiffs lack legal grounds to sue the federal government. Sauer said that “before this Court,” there is no sufficient basis for the court to adjudicate a case on the merits. Ali’s earlier order is already out of date, Sauer’s filing notes, and unless the Supreme Court takes action, “will continue to receive increased scrutiny” under the court’s jurisdiction.

Sauer added, however, that while the filing may bring the immediate issue to the attention of the Supreme Court, it does not necessarily mean that the Supreme Court will issue an emergency order stopping foreign aid payments before Congress’s fiscal deadline of September 30. “Congress did not upset the delicate interbranch balance by allowing for unlimited, unconstrained private suits,” Sauer added.

In the appeal, the Trump administration said that once again it was time for the Supreme Court to step in, and that unless the court acted, federal courts would be poised to force the Trump administration to “rapidly obligate” the entire $12 billion in funds or risk forcing the federal government to return to Congress and request new funds. The filing, which asked the court for an injunction before the final fiscal deadline for the spending on September 30, placed the administration’s position on the subject squarely before the Supreme Court.

“The propriety of a resumption of funds, including a deadline for resumption, remains a live issue before this Court and the district court’s injunction will remain in place, unless and until this Court acts,” Sauer said.