A D.C. court panel said foreign aid groups have no standing to sue President Donald Trump and his administration for refusing to spend funds allocated by Congress. But for the affected foreign aid organizations, the legal fight isn’t over.
Mitchell Warren, executive director of the AIDS Vaccine Advocacy Coalition — one of the leading groups attempting to sue the administration — told NOTUS that groups are petitioning for a rehearing in front of the full appeals court.
“We believe when the full court reviews this, they will find on our side that we do have standing,” Warren said. “And that indeed the president and the administration are wrong and that they are not allowed to ignore congressional power of the purse, which is what the Constitution itself says.”
The three-judge federal appeals court panel ruled Wednesday that the plaintiffs don’t have standing to sue the federal government for impounding funds. But even if the case gets another look, the decision could still stand against the foreign aid groups.
That would be a significant blow for humanitarian organizations that have already been struggling under the administration’s funding freeze and the dismantling of the U.S. Agency for International Development.
“There is going to be a tremendous loss of money appropriated by Congress that could have been used to get food to starving children, open up schools and give girls opportunities to read, provide vaccines, provide shelter and water to people fleeing conflicts and crises around the world,” said Lisa Bos, vice president for policy and government relations at InterAction, a network of humanitarian nonprofits.
Elisha Dunn-Georgiou, president and CEO of the Global Health Council, another of the lead plaintiffs, told NOTUS that the impoundment of congressionally appropriated funding, if nothing changes, will affect the whole global public health infrastructure and harm the member organizations she works with.
“It’s really a tragic decision in so many ways, and tragic for the, you know, ceding congressional power to the executive,” she said. “But then in a much broader, more human sense, you’re talking about people who are going to be sick and dying.”
But foreign assistance advocates emphasize that it’s not just about them. Wednesday’s appeals decision has implications for other lawsuits brought by organizations and citizens against the administration, since the appeals court ruled that only the Government Accountability Office’s comptroller can bring cases over impoundment of funds.
Bos said she’s worried that since the comptroller’s position is a presidential appointment, the GAO won’t be inclined to pursue its own suits against the administration for fear of retaliation. In recent weeks, Trump fired the heads of two federal agencies when he disagreed with their actions.
“The concern that I have, and some in our community have, is what is the recourse if we can’t do it as private citizens and organizations, and GAO can’t or won’t do it? Then there literally is no recourse,” Bos said. “And that’s really, really concerning.”
The GAO issued a decision of its own in June stating that the administration had violated the law by not spending appropriated money for the Institute of Museum and Library Services. It said the same earlier in the year about a Department of Transportation freeze on funding for electric vehicle charging stations. Comptroller Gene Dodaro told a Senate committee in April that there were then 39 investigations ongoing into funding freezes at various agencies, and that the White House budget office had “not been responsive.”
It’s not clear, however, whether the GAO would pursue legal action against the administration. Dodaro’s term ends in December, meaning a Trump appointee will likely take his place. The GAO did not respond to a request for comment.
Warren also said he’s concerned that the D.C. court’s decision, if it holds, will give more leeway to the administration to undercut Congress in general when it comes to spending.
“This is yet one additional example of the intentional effort to destroy 250 years of practice of the Constitution and the practice in terms of the separation of powers, in terms of Congress’ role in the power of the purse.”
Congress did take some action in late July, when it narrowly passed a rescission package rolling back appropriated funds at the president’s request but salvaged $400 million from a broadly popular foreign assistance program combating the spread of HIV/AIDs.
That’s a crumb of good news for Warren, whose organization focuses on HIV/AIDs prevention and treatment. But the rescission package still dealt a significant blow to the rest of foreign aid and, to Warren, demonstrated that Congress isn’t using its power even to enforce spending the money it saved.
“The rescission package saved the money so it still can be used, but it has not yet been used. And the big question is, will it be used?” Warren said. “Or will they do another rescission? Will they just totally ignore Congress? And I don’t know the answer.”
Dunn-Georgiou, of GHC, said that the rescissions package did not specify what was included in the foreign aid cuts and what was saved, setting up a landscape that’s likely to be confusing for federal agencies and aid organizations alike.
“The fact that Congress would pass this package without having details of what they were cutting and what they were saving other than these very broad categories is really unheard of,” she said.
So even as some health-related foreign aid might be able to continue, the other sweeping cuts could dismantle the sector. Saving HIV/AIDs funding is more of a “Pyrrhic victory,” Dunn-Georgiou said.
“It’s almost like, you know, ‘Oh, he had a broken finger. We saved it, but we cut off his hand,’” said Warren, from AVAC. “It doesn’t matter that you healed the broken finger if you cut off the hand.”