GLOBAL HEALTH COUNCIL, ET AL. v. DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES OF AMERICA, ET AL.
No. 25-5097
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued July 7, 2025; Decided August 13, 2025
Consolidated with 25-5098
Sean R. Janda, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Brett A. Shumate, Assistant Attorney General, Eric D. McArthur, Deputy Assistant Attorney General, and Mark R. Freeman, Daniel Tenny, and Brian J. Springer, Attorneys.
Alan Wilson, Attorney General, Office of the Attorney General for the State of
Daniel F. Jacobson argued the cause for appellees. With him on the brief were Lauren E. Bateman, Nicolas A. Sansone, Allison M. Zieve, William C. Perduе, Sally L. Pei, Stephen K. Wirth, and Samuel F. Callahan.
Alan B. Morrison was on the brief for amicus curiae Alan B. Morrison in support of appellees.
Elizabeth B. Wydra and Brianne J. Gorod were on the brief for amicus curiae Constitutional Accountability Center in support of appellees.
Brian L. Schwalb, Attorney General, Office of the Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Mark A. Rucci, Assistant Attorneys General, Kris Mayes, Attorney General, Office of the Attorney General for the State of Arizona, Rob Bonta, Attorney General, Office of the Attorney General for the State of California, Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Anne E. Lopez, Attorney General, Office of the Attorney General for the State of Hawaii, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, Anthony G. Brown, Attorney General, Office of the Attorney General for the State of Maryland, Andrea Joy Campbell, Attorney General, Office of
Patrick R. Jacobi and Alexandra L. St. Romain were on the brief for amici curiae Law Scholars in support of appellees.
Cerin M. Lindgrensavage was on the brief for amicus curiae Protect Democracy Project in support of appellees.
Before: HENDERSON, KATSAS and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Dissenting opinion by Circuit Judge PAN.
KAREN LECRAFT HENDERSON, Circuit Judge: This is a case about Executive impoundment of funds appropriated by the Congress. On January 20, 2025, President Trump issued an executive order directing the State Department and U.S. Agency for International Development (USAID) to freeze foreign aid spending. Seeking to restore the flow of funds, aid grantees and associations (together, the grantees) sued under the Administrative Procedure Act (APA) and the U.S. Constitution. This expedited appeal arises from the district court‘s grant of a preliminary injunction requiring, in relevant part, the government to make available for obligation the full amount of foreign assistance funds the Congress appropriated for fiscal year 2024.
The district court erred in granting that relief because the grantees lack a cause of action to press their claims. They may not bring a freestanding constitutional claim if the underlying alleged violation and claimed authority are statutory. Nor do the grantees have a cause of action under the APA because APA review is precluded by the Impoundment Control Act (ICA). And the grantees may not reframe this fundamentally statutory dispute as an ultra vires claim either. Instead, the Comptroller General may bring suit as authorized by the ICA. Accordingly, we vacate the part of the district court‘s preliminary injunction involving impoundment.
I.
A.
Under the Constitution, the Congress has the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”
The Congress has also enacted legislation providing a framework for furnishing foreign assistance in support of specified international development goals. See
In 1974, the Congress imposed statutory requirements on the Executive dealing with the obligation and expenditure of appropriated funds. See
The President must also send a special message containing specific information to the Congress when he proposes to defer, or temporarily impound, appropriated funds.
Finally, the ICA sets out a mechanism for reporting and enforcement by the Comptroller General.
B.
On January 20, 2025, the President issued an executive order to reevaluate U.S. foreign aid policies. Exec. Order No. 14,169, 90 Fed. Reg. 8,619 (Jan. 20, 2025) (Reevaluating Foreign Aid). Section 3 of the order required (a) an immediate pause in foreign development assistance, (b) a review of foreign assistance programs in consultation with the Director of the Office of Management and Budget (OMB) and (c) a determination within 90 days on whether to continue each program, subject to the Secretary of State‘s agreement. Id. § 3(a)-(c). Foreign assistance fund disbursement could be resumed earlier than 90 days if the Secretary of State or his designee—in consultation with the OMB Director—decided to continue the program and the Secretary of State could also waive the pause for specific programs. Id. § 3(d)-(e).
On January 24, the Secretary of State issued a memorandum suspending new funding obligations for State Department- or USAID-funded programs subject to certain waivers, USAID issued instructions to pause new programs and issue stop-work orders and OMB issued a memorandum pausing foreign-aid financial assistance. Within weeks, the State Department and USAID suspended or terminated thousands of grant awards. Since then, the State Department and USAID have also begun major restructuring and downsizing efforts and the State Department has completed its programmatic review of foreign assistance programs.
Recipients of foreign-assistance funds sued to enjoin various executive branch defendants from implementing the executive order.2 One group of grantees brought two constitutional and four APA claims.3 Under the Constitution, they allege violations of (1) the separation of powers and
On February 13, the district court granted in part and denied in part a temporary restraining order (TRO) and enjoined executive branch defendants other than the President from enforcing or giving effect to certain sections of the State Department memorandum and any other directives that implement sections 3(a) and (c) of the executive order. AIDS Vaccine Advoc. Coal. v. Dep‘t of State (AVAC I), 766 F. Supp. 3d 74, 84-85 (D.D.C. 2025). After the district court entered a subsequent order to enforce its TRO, we dismissed the government‘s emergency appeal of that order for lack of appellate jurisdiction and denied mandamus relief. AIDS Vaccine Advoc. Coal. v. Dep‘t of State, No. 25-5046, 2025 WL 621396, at *1 (D.C. Cir. Feb. 26, 2025). In turn, the U.S. Supreme Court also rejected the government‘s request to vacate the enforcement order. Dep‘t of State v. AIDS Vaccine Advoc. Coal., 145 S. Ct. 753 (2025) (mem.).5
On remand, the district court granted in part and denied in part the grantees’ motion for a preliminary injunction. AIDS Vaccine Advoc. Coal. v. Dep‘t of State (AVAC II), 770 F. Supp. 3d 121 (D.D.C. 2025). First, the court found that the grantees have Article III standing because they are financially injured by the defendants’ blanket suspension of funds and an injunction against that suspension redresses at least in part that harm. Id. at 132-34. Next, the court addressed claims under the APA relating to the terminations, suspensions and stop-work orders issued between the dates of the executive order and the TRO for foreign assistance grants, cooperative agreements and contracts. Id. at 134-43. The district court held that the grantees would likely succeed on their APA claims as to the initial funding freeze, between the January 20 executive order and February 13 TRO, but not the subsequent large-scale termination of contracts. Id. Those claims are not on appeal.
As to the grantees’ impoundment claims, the court determined that the grantees were likely to succeed in showing that the executive branch was unlawfully “engaging in a unilateral rescission or deferral of congressionally appropriated funds in violation of Congress‘s spending power.” Id. at 143. The court emphasized that here the Congress used its spending power through the 2024 Appropriations Act and the ICA, and the President‘s power is at its “lowest ebb” when he “takes measures incompatible with the expressed or implied will of Congress.” Id. at 144 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)).
The court further found no indication that the President had complied with the procedures required by the ICA or the Anti-Deficiency Act for impounding congressionally appropriated funds and thus reasoned that his actions likely violated the three statutes at issue and the Constitution. Id. at 144-48 & nn.14, 18. The court additionally rejected the government‘s arguments that the grantees cannot bring a freestanding constitutional claim and that the ICA precludes the grantees from bringing an impoundment suit under the APA. Id. at 148 n.17. It also held that the defendants likely acted ultra vires. Id. n.18. The cоurt did not reach the grantees’ Take Care Clause claim. Id. n.17.
Regarding the other preliminary injunction factors, the court found that the grantees were likely to suffer irreparable injury from financial harm threatening their continued existence and imposing obstacles to their missions. Id. at 149-52. Moreover, it found that the equities and public interest weighed in favor of an injunction because there is no public interest in unlawful agency action and the executive branch may still review foreign aid programs. Id. at 152.
Accordingly, the court enjoined the government in relevant part “from unlawfully impounding congressionally appropriated foreign aid funds” and ordered it to “make available for obligation the full amount of funds” appropriated in the 2024 Appropriations Act. Id. at 155. The government timely appealed and we agreed to expedite the appeal.
II.
The government does not dispute Article III standing except as it relates to the appropriate scope of relief granted. Nevertheless, we have “an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (citation omitted). To establish standing, the grantees must show (1) injury in fact that is concrete and particularized and actual or imminent rather than conjectural or hypothetical, (2) causation fairly traceable to the defendants’ challenged actions and (3) redressability by a favorable decision that is likely as opposed to merely speculative. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). Because “standing is not dispensed in gross . . . plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek.” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (citations omitted).
The Executive‘s initial funding freeze and suspension of contracts plainly caused the grantees “immense harm, including by inflicting massive financial injuries [on the grantees], forcing them to significantly reduce core operations and staff.” AVAC II, 770 F. Supp. 3d at 133 (citing AVAC I, 766 F. Supp. 3d at 78-82). That harm could be redressed at least in part by a “determination that the blanket suspension was unlawful.” Id. But in the earlier TRO the district court cites for support, it observes that the grantees did “not assert this harm based upon expectations of receiving future grants or aid.” AVAC I, 766 F. Supp. 3d at 79. Instead, they did so based only “upon expectations set in existing contracts with the respective agencies.” Id. The government has paid out substantially all of the amounts owed on existing contracts for work completed between January 20 and February 13, as required by the part of the district court‘s injunction
At oral argument, the grantees’ counsel relied on the district court‘s preliminary injunction hearing and their declarations to support impoundment standing. Earlier, at the preliminary injunction hearing, the grantees had asserted that the court could redress their injuries by ordering funds to be made available because the grantees would be eligible to compete for the funds even if not guaranteed to obtain them. See Prelim. Inj. Hr‘g at 14-15, AVAC II, 770 F. Supp. 3d (D.D.C. Mar. 10, 2025) (No. 1:25-cv-402), Dkt. 58. Indeed, a plaintiff may be harmed by denial of the opportunity to compete for a pool of funds for which they are able and willing to compete. See Coal. of MISO Transmission Customers v. FERC, 45 F.4th 1004, 1014-16 (D.C. Cir. 2022). And the declarations make clear the degree to which the grantees are financially dependent on appropriated foreign assistance funds. For example, Democracy International attests that 96 per cent of its 2024 revenue came directly from USAID. J.A. 346. Moreover, even the prospect of a “single dollar” can “effectuate a partial remedy” and thereby “satisf[y] the redressability requirement.” Uzuegbunam v. Preczewski, 592 U.S. 279, 291 (2021) (citation omitted).
Thus, because even the prospect of competing for funds months later would partially redress the injuries to the grantees’ finances, they have established standing. Because we hold that the grantees have standing due to their financial injuries, we need not separately address alleged harm to their missions.
III.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008) (citations omitted). “A preliminary injunction is an extraordinary remedy never awarded as of right.” Id. at 24 (citation omitted).
The balance-of-equities and public-interest factors merge if the government is the opposing party. Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir. 2020) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). “In this circuit, it remains an open question whether the ‘likelihood of success’ factor is ‘an independent, free-standing requirement,’ or whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question’ on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 393, 398 (D.C. Cir. 2011)).
We review the district court‘s decision whether to grant a preliminary injunction for abuse of discretion, its legal conclusions de novo and its findings of fact for clear error. Hanson v. District of Columbia, 120 F.4th 223, 231 (D.C. Cir. 2024) (per curiam). Here, we conclude that the district court abused its discretion in granting a preliminary injunction because the grantees failed to show they are likely to succeed on the merits and the other Winter factors do not “strongly favor” the issuance of an injunction.
The district court held in the main that the grantees were likely to succeed on their constitutional claim that the government violated separation-of-powers principles by impounding funds in violation of the 2024 Appropriations Act, the ICA and the Anti-Deficiency Act. AVAC II, 770 F. Supp. 3d at 143-48. In a footnote, it rejected the government‘s arguments that the court could not also find action contrary to law under the APA based on a violation of the ICA. See id. at 148 n.17. In another footnote, it held that the grantees were likely to succeed on their ultra vires claim. See id. at 148 n.18. Because the grantees lack a cause of action to bring any of these claims, the district court committed legal error.6
1.
“Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose.” DeVillier v. Texas, 601 U.S. 285, 291 (2024) (first citing Egbert v. Boule, 596 U.S. 482, 490-91 (2022); and then citing
As a threshold matter, the grantees argue in a surreply brief that the government has forfeited reliance on Dalton by failing to raise it in its opening brief. That oversight is hard to understand. Nevertheless, the entire opening brief proceeds from the premise that this dispute raises a statutory claim—and therefore by implication not a constitutional one, despite the district court‘s characterization otherwise—which is in effect the Dalton argument that the government advanced below. See AVAC II, 770 F. Supp. 3d at 148 n.17. “And once an argument is before us, it is our job to get the relevant case law right. Indeed, a party cannot forfeit or waive recourse to a relevant case just by failing to cite it.” United States v. Hillie, 39 F.4th 674, 684 (D.C. Cir. 2022) (quotation omitted).
The Supreme Court has also held that “when an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” U.S. Nat‘l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) (citation modified); see also id. at 447 (“A court may consider an issue antecedent to and
This also fits with the purpose of forfeiture doctrine, which is intended to prevent “sandbagging of appellees” and any expectation that judges be “mindreaders.” Jones Lang LaSalle Americas, Inc. v. NLRB, 128 F.4th 1288, 1297 (D.C. Cir. 2025). Here, the issue was fully briefed below and the grantees were able to respond on appeal in their surreply brief, providing us7
with adversarial briefing. Thus, we hold that the Dalton argument is not forfeit.
In Dalton, the Supreme Court reviewed a circuit court‘s reasoning that “whenever the President acts in excess of his statutory authority, he also violates the constitutionаl separation-of-powers doctrine,” and therefore “judicial review must be available to determine whether the President has statutory authority for whatever action he takes.” Dalton, 511 U.S. at 471 (citation modified). The Court rejected that effort to recast statutory claims as constitutional ones. The Court emphasized that it had “often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority” and explained that otherwise there would be “little need” for the established distinction between unconstitutional and ultra vires conduct. Id. at 472 (citations omitted). Moreover, plaintiffs would otherwise be able to avoid statutory limits on review by reframing any alleged statutory violation by the President as a constitutional one. See id. at 474.8
The grantees cite several cases in support of their right to bring their constitutional claim here but each is distinguishable. First, the grantees point to Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), and Collins v. Yellen, 594 U.S. 220 (2021), where plaintiffs
brought separation-of-powers challenges to statutory restrictions on the President‘s power to remove executive officers. But in that line of cases the plaintiffs challenged the constitutionality of the statute itself. From the outset, the government has not contested the constitutionality of the relevant statutes. See AVAC II, 770 F. Supp. 3d at 144.9 And the grantees
The grantees also cite Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), in which the High Court held that the President lacked the constitutional authority to seize steel mills to avoid a strike and maintain output for the Korean War effort. As the Court later explained in Dalton, the “only basis of authority asserted” in Youngstown “was the President‘s inherent constitutional power as the Executive and the Commander in Chief of the Armed Forces.” 511 U.S. at 473. “Youngstown thus involved the conceded absence of any statutory authority, not a claim that the President acted in excess of such authority.” Id. 10
On appeal, the government disclaims any constitutional defense, although it maintains that the defendants committed no statutory violations. The grantees characterize this as an ad hoc litigating position, claiming that in the executive order and below the government relied exclusively on constitutional authority for impoundment. That is incorrect. The executive order relied on the President‘s authority under “the Constitution and the laws of the United States of America.” Reevaluating Foreign Aid, 90 Fed. Reg. at 8,619 (emphasis added). And the government did raise a Dalton argument in district court, contending that the dispute was “purely statutory.” Opp‘n to Pl.‘s Mot. for Prelim. Relief at 23, AVAC II, 770 F. Supp. 3d 121 (D.D.C. Mar. 10, 2025) (No. 1:25-cv-402), Dkt. 34. Granted, in district court the government went on to assert “vast and generally unreviewable” foreign affairs powers. Id. at 24-26 (citation modified). But it further argued—albeit in the context of the grantees’ APA claims—that it did not exceed its statutory authorization or act contrary to the statutes. Id. at 33-36. In turn, those alleged statutory violations must be the predicate acts for the constitutional claims because without an appropriations statute there could be no improper impoundment. Thus, Youngstown is inapposite.11
that framework where, as here, the case is resolved by the antecedent question of whether the grantees had a cause of action in the first place.
The grantees further rely on Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015), but that case cuts against them. There, healthcare providers brought a Supremacy Clause claim against state officials to enforce the Medicaid Act. Id. at 323-24. The Supreme Court acknowledged that under Ex parte Young, 209 U.S. 123 (1908), courts may grant injunctive relief against state officials for violations of federal law. Id. at 327. But that “judge-made remedy” did not “rest[] upon an implied right of action contained in the Supremacy Clause.” Id. (emphases added). Instead, analyzing the text of the Supremacy Clause, the Court highlighted that it is “silent regarding who
In their surreply brief, the grantees point to two more cases in their attempt to rebut Dalton. Neither does the trick. First, the grantees reference In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013). But the dispute there was about whether a federal agency had to continue with a mandatory licensing process despite lacking sufficient funds to complete the process, thereby only indirectly implicating appropriated funds. Id. at 257-60. More importantly, that case involved a writ of mandamus under the APA to compel federal officers to perform a statutory duty unreasonably withheld rather than a constitutional cause of action. Pet. for Writ of Mandamus at 3, In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013) (No. 11-1271) (citing
The grantees also rely on Chamber of Commerce of the United States v. Reich, 74 F.3d 1322 (D.C. Cir. 1996). There, we considered whether an executive order relying on authority under a statute that granted the President broad discretion was reviewable for an alleged violation of another statute. Id. at 1329-32. We rejected the government‘s argument that review was unavailable simply because the President claimed authority to act under a different statute that conferred broad authority; otherwise, the President could always invoke such a statute to “bypass scores of statutory limitations on governmental authority.” Id. Granted, in Reich we said that ”Dalton‘s holding merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no limitations on the President‘s exercise of that authority, judicial review of an abuse of discretion claim is not available.” Id. at 1331. But Dalton had four holdings. See Dalton, 511 U.S. at 476-77. Only the fourth holding was at issue in Reich. The third holding explained that statutory claims cannot be transformed into constitutional ones and applies here. Moreover, in Reich we emphasized that the presidential action at issue was not “even contеmplated by Congress.” 74 F.3d at 1332. Here, the ICA provides a mechanism for the President to act on impoundment.
In sum, we conclude that Dalton controls this case and the grantees lack a cause of action to bring their freestanding constitutional claim.15
Notes
The majority‘s interpretation of Dalton creates a circuit split. In Murphy Co. v. Biden, the Ninth Circuit held that, under Dalton, “a сhallenge to presidential action will be considered constitutional, and therefore justiciable under Franklin, so long as a plaintiff claims that the President has violat[ed] . . . constitutional separation of powers principles because the President‘s action [would] lack[] both statutory authority and background constitutional authority.” 65 F.4th at 1130 (cleaned up). That court read Dalton to hold that “[w]hile an action taken by the President in excess of his statutory authority does not necessarily violate the Constitution, specific allegations regarding separation of powers may suffice.” Id. (cleaned up); accord City of Chicago v. Barr, 961 F.3d 882, 931 (7th Cir. 2020) (not interpreting Dalton but holding that the Attorney General‘s decision to attach conditions to grants “exceeded the authority delegated by Congress in the” relevant statutes and “violated the constitutional separation of powers“). Thus, the majority‘s interpretation of Dalton finds little support in the case itself, in the majority‘s analysis of it, or in the decisions of sister circuits that considered the same issue and came to a different conclusion.
I also disagree with the majority‘s suggestion that the grantees assert a mere violation of the Impoundment Control Act that should be addressed by the Comptroller General. See Maj. Op. 5 (“Instead, the Comptroller General may bring suit as authorized by the [Impoundment Control Act].“). In this case, the President‘s violation of the Impoundment Control Act is a sideshow. That statute provided a mechanism for the President to lawfully attempt to impound the funds, and his failure to follow its prescribed procedures is evidence that he was, in fact, refusing to obligate the funds in defiance of Congress. But the crux of the separation-of-powers problem is the President‘s refusal to comply with the Appropriations Act for policy reasons — that was an impingement on Congress‘s authority under the Spending Clause and the Appropriations Clause, and also violated the Take Care Clause.
The Impoundment Control Act is not meant to cover such a challenge. Under that statute, the President cannot withhold funds without transmitting a special message to Congress that “specif[ies]” things like “the amount of the budget authority proposed to be” rescinded or deferred, and “any account, department, or establishment of the Government to which such budget authority is available for obligation, and the specific project or governmental functions involved.”
In sum, the majority errs in characterizing the grantees’ claim as merely statutory and in applying Dalton to deny the grantees a constitutional cause of action.
ii.
My colleagues’ application of Dalton is premised on their determination that the President‘s withholding of foreign-aid funds presents a “fundamentally statutory dispute.” Maj. Op. 5. That premise is incorrect. Before the district court, the government defended the President‘s actions by arguing that he had “vast and generally unreviewable powers” “in the realm of foreign affairs” under “Article II of the Constitution.” Defs.’ Opp‘n to Pls.’ Mot. for Prelim. Relief at 23-26. Thus, the issue before us is the legality of the President‘s assertion of his Article II powers over foreign affairs to impound foreign-aid appropriations. And that means this case is not a “statutory dispute” but a constitutional one, which the district court properly analyzed under the tripartite framework of Youngstown.
The record on review plainly shows that this case is more than just a “statutory dispute.” In the executive order pausing foreign-aid funding, the President relied on his authority under “the Constitution and the laws of the United States of America.” 90 Fed. Reg. at 8619 (emphasis added). Before the district court, the government argued that the grantees’ “separation of powers claims . . . fail because the President‘s powers in the realm of foreign affairs are vast and generally unreviewable.” Defs.’ Opp‘n to Pls.’ Mot. for Prelim. Relief at 24 (cleaned up). It identified Article II as the source of the President‘s power, asserting: “Under Article II of the Constitution . . . , the President has broad authority to attend to the foreign affairs of the nation, including by determining how foreign aid funds are used.” Id. The district court ultimately determined that the President‘s foreign affairs powers under Article II were insufficient to justify his actions “in an area where it is firmly established that the two branches share power.” Prelim. Inj. Order at 37-38 (cleaned up).
My colleagues makе two errors in concluding that the issues before us are statutory and not constitutional: First, they allow the government to change its position on appeal to disclaim any reliance on the President‘s Article II powers; and second, they misunderstand the relevance of the President‘s statutory violations in applying Youngstown‘s constitutional framework.
The majority‘s characterization of this case as “fundamentally statutory” depends on the government‘s representation at oral argument that it is “not relying on any constitutional authority . . . to justify” the President‘s withholding of foreign-aid funds. Oral Arg. Tr. 18-19; see also id. at 14 (arguing it has “not advanced in this appeal any sort of freestanding constitutional argument that the executive doesn‘t have to spend the funds if the statutes require the executive to spend the funds“). That representation, of course, is a sharp break from what the government argued in the district court. Because we are reviewing the district court‘s ruling, which was based on what the government argued in the court below, the government may not change its position on appeal. See Baldi v. Ambrogi, 89 F.2d 845, 846 (D.C. Cir. 1937) (“Nothing is better settled than the rule that one may not try a case upon one theory and then reverse the judgment against him in the appellate court upon another and inconsistent theory which is not presented, urged, or tried in the court below.“). Indeed, we have held that a litigant‘s “obvious about-face render[s] its claims forfeited.” Del. Dep‘t of Nat. Res. & Env‘t Control v. EPA, 895 F.3d 90, 96 (D.C. Cir. 2018); see also id. (“A petitioner may not take a position in this court opposite from that which it took below . . . .” (cleaned up)). My colleagues thus err in accepting without question the government‘s abrupt change in tactics, which appears to be motivated by its preference to avoid appellate review of the separation-of-powers issue.
My colleagues also are mistaken in their apparent belief that if the President asserts both constitutional and statutory authority to validate his conduct, the court may characterize the whole dispute as statutory. See Maj. Op. 20. They acknowledge that the government previously relied on the President‘s Article II powers to impound the funds in question, but they note that (1) the executive order referenced “the Constitution and the laws of the United States of America,” (2) the government raised a Dalton argument claiming the dispute was “purely statutory,” and (3) the government claimed that it did not exceed its statutory authority or violate any statutes. Id. (emphasis in original). That reasoning betrays a misunderstanding of how statutory arguments fit within Youngstown‘s constitutional framework.
In applying Youngstown, the district court engaged in a multistep analysis in which statutory and constitutional issues were intertwined. First, the district court determined that the President had no statutory authority for his actions because he defied the Approрriations Act and did not follow the procedures required by the Impoundment Control Act. With no support from any statute, the President had to rely on constitutional authority alone. See Youngstown, 343 U.S. at 585 (“The President‘s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.“). The district court noted that the President‘s actions placed him in the “third category” of Youngstown‘s tripartite framework because he took “measures incompatible with the . . . will of Congress,” as demonstrated by his defiance of the statutes that Congress had enacted. Prelim. Inj. Order at 30 (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). The Executive‘s power was thus “at its lowest ebb.” Id. (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). In that posture, the President could prevail only if his own constitutional powers over the matter were exclusive. See id. at 32 (“Defendants’ actions must be ‘scrutinized with caution,’ and they ‘can rely only upon [the President‘s] own constitutional powers minus any constitutional powers of Congress over the matter.‘” (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring))). The constitutional authority asserted by the government was the President‘s “foreign affairs” power under a “general Article II responsibility to serve as the Executive and take care that the laws be faithfully executed.” Id. at 32. But, the district court explained, “settled, bedrock principles of constitutional law” prohibit the President from “disregard[ing] a statutory mandate to spend funds simply because of policy objections“; and “the Supreme Court has explicitly rejected” any “unbounded [Executive] power” in the realm of foreign affairs, “where it is firmly established that the two branches share power.” Id. at 33-34, 37 (cleaned up). Thus, the court concluded that the grantees were likely to succeed on their claim that the President violated the separation of powers.
The district court‘s chain of reasoning demonstrates that although statutory issues were integral to the analysis, that does not mean that the dispute was not constitutional. Rather, when determining whether the Executive‘s exercise of authority comports with the separation of powers under Youngstown, a court is required to examine and apply relevant statutes. See Youngstown, 343 U.S. at 635 (Jackson, J., concurring) (beginning the constitutional analysis with determining whether the President “acts pursuant to an express or implied authorization of Congress“).9 Thus, the majority‘s application of Dalton rests on a mistaken assumption that this case raises only a “fundamentally statutory dispute.” Maj. Op. 5.
In sum, the government undeniably asserted constitutional authority for the President‘s actions, and this case thus “necessarily turn[s] on whether the Constitution authorized [those] actions.” Dalton, 511 U.S. at 473. It follows that, even under the majority‘s interpretation of Dalton, the grantees may bring a constitutional cause of action here.
IV.
My review of the district court‘s preliminary-injunction order has focused primarily on the district court‘s determination that the grantees were likely to succeed on the merits of their claims. As discussed, I would summarily affirm that aspect of the preliminary-injunction order because the government failed to challenge the district court‘s ruling on the separation of powers, which was the basis of the order‘s analysis of the merits. See World Wide Mins., 296 F.3d at 1160. I also would affirm the district court‘s findings regarding irreparable harm, as well as its weighing of equitable factors and the public interest. See Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.“).
The government does not dispute that the grantees have shown harm that is “‘both certain and great,’ as well as ‘actual and not theoretical,‘” as the district court found. Prelim. Inj. Order at 42 (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). Indeed, the grantees undeniably have suffered harm from the slashing of their budgets, resulting in large-scale layoffs, shuttered program offices, and deferred payments to vendors. And the effects of the funding freeze have rippled around the world, devastating the grantees’ aid programs and the people that they serve. Nevertheless, my colleagues speculate that “it stands to reason that existential financial harm would already have taken place by the time that the grantees would finally receive unobligated funds for which they first had to compete,” and notes that “[t]he record is simply less developed about . . . why being denied immediate relief as to that opportunity [to compete for impounded funds] would cause harm the grantees would not suffer anyway.” Maj. Op. 32. In my view, my colleagues’ understanding of irreparable harm demands an unduly stringent showing from the grantees. As my colleagues acknowledge, we have held that a lost opportunity to receive funding is a cognizable injury. Cf. CC Distribs., Inc. v. United States, 883 F.2d 146, 150 (D.C. Cir. 1989) (“[A] plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a benefit . . . even though the plaintiff may not be able to show that it was certain to receive that benefit had it been accorded the lost opportunity.” (emphases in original)). Because the government‘s failure to obligate the appropriated funds denies the grantees any chance of obtaining critical grants before the funding lapses at the end of the fiscal year, there is a sufficient causal connection between the relief requested and the very real harm suffered by the grantees.
The remaining factors — the balance of equities and the public interest — “merge when, as here, the Government is the opposing party.” Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir. 2020) (cleaned up). Those factors strongly favor the grantees because “there is a substantial public interest in having” the government “abide by the federal laws.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 13 (D.C. Cir. 2016) (cleaned up). That is particularly true when it is likely that the Executive has violated the separation of powers. Contrary to the majority‘s suggestion, that is not an injury “on behalf of the Congress.” Maj. Op. 33. “The structural principles secured by the separation of powers protect” not only Congress and the President, but “the individual as well.” Bond, 564 U.S. at 222. As the Supreme Court has recognized, “the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.” Mistretta, 488 U.S. at 380. It is undeniably in the public interest to respect and enforce this separation of powers — a “basic and vital” feature of our system of government. Springer, 277 U.S. at 201; see also Clinton, 524 U.S. at 450 (Kennedy, J., concurring) (“Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.“); Youngstown, 343 U.S. at 629 (Douglas, J., concurring) (“The doctrine of the separation of powers was adopted . . . to preclude the exercise of arbitrary power. The purpose was . . . to save the people from autocracy.” (cleaned up)).
For the foregoing reasons, I would affirm the preliminary-injunction order to the extent it is no broader than necessary to afford complete relief to the grantees.10
* * *
In 2013, when a government agency “simply def[ied] a law enacted by Congress without any legal basis,” we recognized that the case had “serious implications for our constitutional structure,” and granted a mandamus petition to compel the Executive‘s compliance. Aiken, 725 F.3d at 266-67. Today, a President defies laws enacted by Congress without any legal basis, and the court holds that he has merely violated a statute, that the Constitution is not even implicated, and that there is no judicially enforceable cause of action to challenge his conduct. By failing to rein in a President who ran roughshod over clear statutory mandates, the court “evade[s] [its] constitutional responsibility to delineate the obligations and powers of each branch” of our government. Halperin, 606 F.2d at 1211. The court also departs from the norms of impartial appellate review by resolving this case in the President‘s favor based on a legal argument that the government clearly and obviously forfeited. Moreover, the new constitutional rule that the court announces paves the way for future illegal conduct: The court holds that Executive action that exceeds statutory authоrity or violates a statute can never be the basis of a constitutional cause of action. To reach that startling conclusion, the court misinterprets Dalton v. Specter, and ignores that the government has relied on the President‘s constitutional authority to justify his actions here, which makes the court‘s entire analysis under Dalton inapposite.
At bottom, the court‘s acquiescence in and facilitation of the Executive‘s unlawful behavior derails the “carefully crafted system of checked and balanced power” that serves as the “greatest security against tyranny — the accumulation of excessive authority in a single Branch.” Mistretta, 488 U.S. at 381. “It is no overstatement to say that our constitutional system of separation of powers [will] be significantly altered” because the court “allow[s] [the Executive Branch] to disregard federal law in the manner asserted in this case[.]” Aiken, 725 F.3d at 267. Because the court turns a blind eye to the “serious implications” of this case for the rule of law and the very structure of our government, I respectfully dissent.
2.
In passing, the district court rejected the government‘s argument that the ICA precludes the grantees from bringing suit under the APA to enforce its provisions. AVAC II, 770 F. Supp. 3d at 148 n.17. At oral argument, the grantees did not concede that they cannot enforce the alleged statutory violations if their constitutional claim falls under Dalton, asserting instead that they would then be enforcing the 2024 Appropriations Act. Thus, we proceed to this alternative cause of action.
“The APA confers a general cause of action upon persons ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute’ but withdraws that cause of action to the extent the relevant statute ‘precludes judicial review.‘” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984) (first quoting
There is a “presumption favoring judicial review of administrative action” but it “is just that—a presumption.” Id. at 349. As relevant here, it “may be overcome by inferences of intent drawn from the statutory scheme as a whole.” Id. (citations omitted). “In particular, at least when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly рrecluded.” Id. (citations omitted).
In some cases, the Supreme Court has said that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Id. at 350 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)). Nevertheless, it has “never applied the ‘clear and convincing evidence’ standard in [a] strict evidentiary sense.” Id. “Rather, the Court has found the standard met, and the presumption favoring judicial review overcome, whenever the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme.‘” Id. at 351 (quoting Ass‘n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970)).
The statute at issue in Block allowed dairy handlers to seek judicial review—after administrative exhaustion—of the Secretary of Agriculture‘s orders to set minimum prices that handlers had to pay farmers but nowhere did the statute provide for consumers to obtain review. Id. at 346-47. That “omission” from such a “complex scheme” provided “reason to believe that Congress intended to foreclose” review for consumers despite their interests being “implicated.” Id. at 347. It did not make sense for the Congress to require exhaustion for dairy handlers but not consumers, and allowing consumers to sue would “severely disrupt this complex and delicate administrative scheme,” and would enable a handler to circumvent exhaustion by finding a consumer to bring suit. Id. at 347-48; see also Sackett v. EPA, 566 U.S. 120, 130 (2012) (“Where a statute provides that particular agency action is reviewable at the instance of one party, who must first exhaust administrative remedies, the inference that it is not reviewable at the instance of other parties, who are not subject to the administrative process, is strong.“). Thus, consumers were by necessary implication precluded by the statutory scheme from suing under the APA. Block, 467 U.S. at 352. Recently, the Supreme Court contrasted the scheme in Block, providing for review by dairy handlers but not consumers, from one that provided for suit by “any person adversely affected.” FDA v. R.J. Reynolds Vapor Co., 145 S. Ct. 1984, 1995 & n.8 (2025).
Here, the ICA created a complex scheme of notification of the Congress, congressional action on a proposed rescission or deferral and suit by a specified legislative branch official if the executive branch violates its statutory expenditure obligations. See
The ICA does have a disclaimer that nothing in it “shall be construed” as “affecting in any way the claims or defenses of any party to litigation concerning any impoundment.”
The dissent also points to the ICA‘s legislative history, Dissenting Op. 38, but nothing in that history alters our analysis. As the Supreme Court has often admonished, “legislative history is not the law” and courts must not “allow ambiguous legislative history to muddy clear statutory language.” Azar v. Allina Health Servs., 587 U.S. 566, 579 (2019) (citation modified). Indeed, the legislative history here is ambiguous. Section 681(3) originated from proposed language in the House version of the bill that would have limited it to litigation about pre-ICA impoundment. See Pet‘r‘s Suppl. Br. at 6-8, Train, 420 U.S. 35 (No. 73-1377). According to then-Solicitor General Robert Bork, the undiscussed deletion of that limiting language from the conference version of the bill was likely “inadvertent.” Id. at 8-9. Conversely, the Senate Report stated, “The authority of the Comptroller General is not intended to infringe upon the right of any Member of Congress, or any other party, to initiate litigation.” S. Rep. No. 93-688, at 74 (1974) (emphasis added). But that language was conspicuously absent from the Conference Report. See S. Rep. 93-924, at 76-78 (1974) (Conf. Rep.). To find that section 681(3) supports reading in a private cause of action, one would have to selectively ascribe meaning to the deletion of the House‘s limiting language from the final bill but not to the omission of the Senate‘s explanatory language from the Conference Report.
Accordingly, the grantees have no cause of action to undergird their APA contrary-to-law claim.17
3.
As yet another alternative to its principal holding, the district court noted that the grantees would likely succeed on their ultra vires claim—in other words, the grantees’ non-APA claim that the defendants have exceeded their statutory authority. AVAC II, 770 F. Supp. 3d at 148 n.18. The grantees belatedly point to this alternative ground for affirmance in their surreply. In any event, that argument fails as well.
Courts have “recognized a right to equitable relief” from executive action that is “unauthorized by any law and in violation of the rights of the individual.” Nuclear Regul. Comm‘n v. Texas, 145 S. Ct. 1762, 1775 (2025) (citation modified). “Because ultra vires review could become an easy end-run around the limitations of . . . judicial-review statutes,” the Supreme Court has “strictly limited nonstatutory ultra vires review to the painstakingly delineated procedural boundaries of Leedom v. Kyne, 358 U.S. 184 (1958).” Id. at 1775-76 (citation modified). The Court further admonished that parties may not “dress up a typical statutory-authority argument as an ultra vires claim.” Id. at 1776.
To prevail on an ultra vires claim, the plaintiff must establish that (1) review is not expressly precluded by statute, (2) “there is no alternative procedure for review of the statutory claim” and (3) the challenged action is “plainly” in “excess of [the agency‘s] delegated powers and contrary to a specific prohibition in the statute that is clear and mandatory.” Changji Esquel Textile Co. v. Raimondo, 40 F.4th 716, 722 (D.C. Cir. 2022) (quotation omitted). A defendant “violates a clear and mandatory statutory command only when the error is so extreme that one may view it as jurisdictional or nearly so.” Id. (citation modified). Moreover, the prohibition at issue must confer rights upon the individual seeking ultra vires review. See Kyne, 358 U.S. at 190 (courts “cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers” (emphasis added)).
Here, the grantees fail to satisfy the third prong of the ultra vires reviewability test. The ICA provides that the Executive may carry out lawful impoundments subject to certain procedures and restrictions and the grantees can point to no specific prohibition the defendants have violated to an extreme and nearly jurisdictional degree. And the district court‘s analysis applying the major questions doctrine is irrelevant to a Kyne inquiry. See AVAC II, 770 F. Supp. 3d at 148 n.18. Instead, and as in Nuclear Regulatory Commission, the grantees “basically dress up a typical statutory-authority argument as an ultra vires claim.” 145 S. Ct. at 1776.18
* * *
Because the grantees lack a cause of action, we need not address on the merits whether the government violated the Constitution by infringing on the Congress‘s spending power through alleged violations of the 2024 Appropriations Act, the ICA and the Anti-Deficiency Act.
B.
Finally, the other Winter factors do not “strongly favor” an injunction. Aamer, 742 F.3d at 1043.
1.
Regarding irreparable injury, the grantees focused their assertions and the district court its analysis primarily on the initial funding freeze. See AVAC II, 770 F. Supp. 3d at 133 (citing AVAC I, 766 F. Supp. 3d at 78-82). Indeed, some grantees are almost entirely financially dependent on funding from foreign-aid appropriations. See, e.g., J.A. 346. Thus, we may infer financial harm and redressability to establish Article III standing as to impoundment. However, we have also said that “[r]ecoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant‘s business.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). The district court made findings of existential financial harm as to the initial funding freeze, AVAC I, 766 F. Supp. 3d at 81, but later ruled that the grantees were unlikely to succeed in showing that subsequent large-scale terminations were unlawful, AVAC II, 770 F. Supp. 3d at 140-43. Thus, the grantees had to be paid for three-and-a-half weeks’ operations completed between January 20 and February 13 but not on their cоntracts going forward.
Because the large-scale contract terminations were not enjoined, it stands to reason that existential financial harm would already have taken place by the time that the grantees would finally receive unobligated funds for which they first had to compete. Or, if the later opportunity to compete for additional grants could fix the harm, it would not be irreparable. The record is simply less developed about how long the grantees could financially continue without the opportunity to compete for impounded funds as opposed to the funds from existing contracts and why being denied immediate relief as to that opportunity would cause harm the grantees would not suffer anyway. Cf. Al-Baluchi v. Hegseth, 140 F.4th 517, 521 (D.C. Cir. 2025) (holding that a Guantanamo Bay prisoner failed to allege irreparable injury from being denied access to a medical review board for a possible determination on repatriation because, even if successful, the government maintained its discretion not to repatriate him). That gap weighs against holding that the irreparable injury factor “strongly favors” the issuance of an injunction.
2.
The remaining preliminary injunction factors merge if the government is the opposing party. Karem, 960 F.3d at 668. Although we have said there is “generally no public interest in the perpetuation of unlawful agency action,” League of Women Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (citations omitted), here we have no occasion to address whether there has been a constitutional or statutory violation because the grantees lack a cause of action. Moreover, it is not clear how to balance a public interest asserted on behalf of the Congress against the public interest asserted by the Executive. See Harris v. Bessent, No. 25-5037, 2025 WL 980278, at *25 (D.C. Cir. Mar. 28, 2025) (Henderson, J., concurring), vacated en banc, 2025 WL 1021435 (D.C. Cir. Apr. 7, 2025), abrogated sub nom., Trump v. Wilcox, 145 S. Ct. 1415. Therefore, this factor does not—at least “strongly“—favor an injunction.
* * *
The parties also dispute the scope of the district court‘s remedy but we need not resolve it—or whether it is forfeit for not being raised below—because the grantees have failed to satisfy the requirements for a preliminary injunction in any event.
For the foregoing reasons, we vacate the district court‘s preliminary injunction and remand for further proceedings consistent with this opinion.
PAN, Circuit Judge, dissenting:
On the first day of his second term, President Donald J. Trump proclaimed that “[t]he United States foreign aid industry and bureaucracy are not aligned with American interests,” and ordered 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.” Reevaluating and Realigning United States Foreign Aid, Exec. Order No. 14,169, 90 Fed. Reg. 8619 (Jan. 20, 2025). Executive Branch officials immediately suspended and subsequently terminated thousands of foreign-aid grаnts, with catastrophic consequences for the grantees and the people that they serve.
Two groups of grantees challenged the funding freeze in district court. In relevant part, they argued that the President‘s unilateral withholding of appropriated funds violated the separation of powers by infringing on Congress‘s power of the purse. In response, the government asserted that the President has “vast and generally unreviewable” power in “the realm of foreign affairs” under Article II of the Constitution, and that includes the power to withhold foreign aid that has been appropriated by Congress. Defs.’ Opp‘n to Pls.’ Mots. for Prelim. Relief at 2, Global Health Council v. Trump, No. 25-cv-402 (D.D.C. Feb. 21, 2025), Dkt. No. 34; see also id. at 24. In a thoughtful opinion, the district court ruled for the grantees. It found that the President did not intend to spend the appropriated funds, and that no authority statutory or constitutional supported the impoundment of those funds. The district court applied the iconic power-balancing framework formulated by Justice Robert H. Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and concluded that the grantees were likely to succeed on the merits of their claim that the President had violated the separation of powers. See 343 U.S. at 634-39 (Jackson, J., concurring). After weighing other relevant factors, the district court entered a preliminary injunction that required the government to “make available for obligation the full amount of funds that Congress appropriated for foreign assistance programs.” Order Granting in Part and Denying in Part Pls.’ Mot. for Prelim. Inj. at 48, Global Health Council v. Trump, No. 25-cv-402 (D.D.C. Mar. 10, 2025), Dkt. No. 60 [hereinafter, Prelim. Inj. Order].
On appeal, the government challenges neither the district court‘s factual finding that the President had no intention of spending the appropriated funds, nor its legal conclusion that his withholding of appropriations likely violated the separation of powers. Instead, the government argues only that the grantees lack a statutory cause of action to force the President to obligate the funds in question. Because that argument does not take issue with the central legal analysis that justified the preliminary injunction, our job is easy—we should affirm that ruling. But my colleagues in the majority compensate for the government‘s litigation missteps by sua sponte reframing the case: The majority concludes that the grantees lack a constitutional cause of action—an issue that the government did not mention in its opening brief and did not fully develop even in its reply brief.
My colleagues in the majority excuse the government‘s forfeiture of what they perceive to be a key argument, and then rule in the President‘s favor on that ground, thus departing from procedural norms that are designed to safeguard the court‘s impartiality and independence. Moreover, the court‘s holding that the grantees have no constitutional cause of action is as startling as it is erroneous. The majority holds that when the President refuses to spend funds appropriated by Congress based on policy disagreements, that is merely a statutory violation and raises no constitutional alarm bells. But the factual scenario presented plainly implicates the structure of our government and the roles played by its coordinate branches—roles that are defined by the Take Care Clause, the Appropriations Clause, the Spending Clause, and the vesting clauses of Articles I and II. Moreover, the Supreme Court and our court have stated in no uncertain terms that the Executive, as a constitutional matter, has no authority to disobey duly enacted statutes for policy reasons. See In re Aiken Cnty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013) (Kavanaugh, J.); Kendall v. United States, 37 U.S. (12 Pet.) 524, 613 (1838). Yet that is what the majority enables today. The majority opinion thus misconstrues the separation-of-powers claim brought by the grantees, misapplies precedent, and allows Executive Branch officials to evade judicial review of constitutionally impermissible actions. I respectfully dissent.
I.
A.
“Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches.” Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (cleaned up); see also Springer v. Gov‘t of the Philippine Islands, 277 U.S. 189, 201 (1928) (“[T]his separation and the consequent exclusive character of the powers conferred upon each of the three departments is basic and vital[.]“). Ours is a “carefully crafted system of checked and balanced power within each Branch” that serves as the “greatest security against tyranny—the accumulation of excessive authority in a single Branch.” Mistretta v. United States, 488 U.S. 361, 381 (1989); see also Buckley v. Valeo, 424 U.S. 1, 122 (1976) (“The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.“).
When it comes to the spending of government funds, the separation of powers is particularly stark: “Congress has absolute control of the moneys of the United States.” Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992) (cleaned up); see also The Federalist No. 48, p. 334 (J. Cooke ed. 1961) (J. Madison) (noting that Congress “alone has access to the pockets of the people“). In
The
Congress exercised its exclusive constitutional prerogatives to legislate, to spend, and to appropriate when it funded foreign aid by enacting the Further Consolidated Appropriations Act of 2024 (Appropriations Act). See
Congress asserted its exclusive authority over spending and appropriations, and set firm limits on executive power in that sphere, by enacting the Congressional Budget and Impoundment Control Act of 1974 (Impoundment Control Act). See
If the President does not follow the impoundment-control procedures contemplated by the Act, the Comptroller General may step in. First, if the President withholds funds without transmitting a special message, the Comptroller General “shall make a report” to Congress and “such report shall be considered a special message.”
When the President acts, his power “must stem either from an act of Congress or from the Constitution itself.” Youngstown, 343 U.S. at 585. Justice Jackson‘s concurrence in Youngstown provides an enduring “tripartite framework” for evaluating whether the President‘s exercise of executive power comports with the separation of powers demanded by the Constitution. Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015) (citing Youngstown, 343 U.S. at 635-38 (Jackson, J. concurring)).
The Youngstown framework describes three categories of executive action, in which presidential power is positively correlated with congressional authorization and approval. The first category addresses “[w]hen the President acts pursuant to an express or implied authorization of Congress,” and notes that under those circumstances, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring). “If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.” Id. at 636-37.
The second category applies “[w]hen the President acts in absence of either a congressional grant or denial of authority,” in which case “he can only rely upon his own independent powers.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Within that context, “there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id. As such, “congressional inertia, indifference or quiescence may sometimes . . . enable, if not invite” the exercise of executive power. Id.
In the third and final category, “the President takes measures incompatible with the expressed or implied will of Congress,” and consequently, “his power is at its lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). To justify his actions, “he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. “Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject.” Id. at 637-38. “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Id. at 638.
Finally,
B.
In 1961, Congress “declare[d]” in the
Since then, Congress has routinely appropriated funds to support those “traditional humanitarian ideals,” and the United States has become the single largest aid donor in the world. Most of our country‘s foreign-aid funding—which until recently accounted for around one percent of the federal budget—has flowed through the Department of State and the U.S. Agency for International Development (USAID). Those agencies have awarded assistance grants or cooperative agreements to implementing partners, which then executed programs that advanced the nation‘s foreign-aid priorities. USAID and State Department grantees have provided life-changing assistance all over the world, funding programs that, for example, provide humanitarian assistance in refugee camps in Syria, feed nearly a million people in Khartoum, and deliver rehydration salts to toddlers in Zambia who are suffering life-threatening diarrhea.
The norms for distributing American foreign aid were upended on January 20, 2025, when President Donald J. Trump began his second term in office. On that day, President Trump issued an executive order proclaiming that “[t]he United Statesforeign aid industry and bureaucracy are not aligned with American interests and in many cases [are] antithetical to American values.” 90 Fed. Reg. at 8619. “It is the policy of [the] United States,” the order continued, “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.”
Secretary of State Marco Rubio promptly issued a memorandum implementing the executive order by “paus[ing] all new obligations of funding, pending a review, for foreign assistance programs funded by or through the Department [of State] and USAID.” Memorandum from the Sec‘y of State, Executive Order on Review of Foreign Assistance Programs, 25 State 6828 (Jan. 24, 2025) (J.A. 132). The memorandum ordered that “the review process for proposals for new foreign assistance grants [and] contracts” be “suspend[ed]“; “no new obligations shall be made for foreign assistance“; and, “[f]or existing foreign assistance awards, contracting officers and grant officers shall immediately issue stop-work orders.”
Funding recipients immediately began receiving “Notice[s] of Suspension” that ordered them to “stop all work under [their] award(s),” “not incur any new costs,” and “cancelas many outstanding obligations as possible.” See, e.g., Letter from Philip Denino, Grants Officer, Dep‘t of State, to Guillermo Birmingham, HIAS Inc. (Jan. 24, 2025) (J.A. 268).
Executive Branch officials were candid about the nature of the “pause.” The State Department‘s website boasted about the money “saved,” announcing that “even at this early stage, over $1,000,000,000 in spending not aligned with an America First agenda has been prevented.” Prioritizing America‘s National Interests One Dollar at a Time, Dep‘t of State (Jan. 29, 2025), https://perma.cc/TVP3-BLJK; see also Pls.’ Mot. for TRO at 12, Aids Vaccine Advocacy Coal. v. Dep‘t of State, No. 25-cv-400 (D.D.C. Feb. 12, 2025), Dkt. No. 13 [hereinafter, AVAC TRO Mot.]. Elon Musk, who was then a special government employee with authority to cut spending, said that it was “[t]ime for [USAID] to die.” Elon Musk (@elonmusk), X (Feb. 2, 2025 at 12:20 PM ET), https://perma.cc/8TAB-K2D2; see also AVAC TRO Mot. at 12-13. The President himself declared, referring to USAID: “CLOSE IT DOWN!” Donald J. Trump (@realDonaldTrump), Truth Social (Feb. 7, 2025 at 9:31 AM ET), https://perma.cc/LV6L-EH5X; see also J.A. 384.
The grantees that brought the instant consolidated suits to challenge the Administration‘s actions “are all recipients of or have members who receivе foreign assistance funding.” Prelim. Inj. Order at 6. The grantees alleged that the President, as well as the State Department, USAID, OMB, and their directors (collectively, the “government“), improperly impounded funds that Congress appropriated for foreign-aid programs that are facilitated or run by the grantees.
The grantees brought three types of claims before the district court. The first type was statutory: The grantees argued that the government‘s suspension of grants and issuance ofstop-work orders were arbitrary, capricious, and contrary to statutory and constitutional law, in violation of the
The district court issued a temporary restraining order (TRO) in favor of the grantees, relying only on their APA claims. See Order Granting in Part and Denying in Part Pls.’ Mot. for TRO at 9, Global Health Council v. Trump, No. 25-cv-402 (D.D.C. Feb. 13, 2025), Dkt No. 21 (noting that “[t]he Court need only find that Plaintiffs are likely to succeed on one of these claims for this factor to weigh in favor of a temporary restraining order” and considering only the APA claims). The district court concluded that the government‘s “blanket suspension” of funds likely was arbitrary and capricious under the APA, id. at 9, and thus enjoined the government from “suspending, pausing, or otherwise preventing the obligation or disbursement of . . . appropriated foreign-assistance funds” or “giving effect to terminations, suspensions, or stop-work orders in connection with . . . foreign assistance award[s]” in existence as of January 19, 2025, id. at 14.
The following week, the grantees informed the district court that the government had failed to comply with the TRO. The district court granted a motion to enforce the TRO, giving the government thirty-six hours to unfreeze payments for work completed prior to the TRO‘s issuance. See Mot. to Enforce TRO Hr‘g Tr. at 57-58, Global Health Council v. Trump, No. 25-cv-402 (D.D.C. Feb. 25, 2025), Dkt. No. 37. The government appealed. We dismissed the appeal for lack ofappellate jurisdiction. See Aids Vaccine Advocacy Coal. v. Dep‘t of State, No. 25-5046, 2025 WL 621396 (D.C. Cir. Feb. 26, 2025). The Supreme Court denied the government‘s application to vacate the district court‘s order. See Dep‘t of State v. Aids Vaccine Advocacy Coal., 145 S. Ct. 753 (2025) (mem.).
Meanwhile, the district court proceeded to consider the grantees’ request for a preliminary injunction on an expedited basis, and the government completed an “individualized” assessment of foreign-aid grants. The government‘s assessment led to a mass termination of foreign-aid funding: After reviewing over 13,000 awards, the government decided that all but 500 USAID awаrds and 2,700 State Department awards would be terminated. Joint Status Report at 16 ¶ 3, Global Health Council v. Trump, No. 25-cv-402 (D.D.C. Feb. 26, 2025), Dkt. No. 42.
After considering briefing from the parties and holding a hearing, the district court entered a preliminary injunction against the government, as requested by the grantees. Prelim. Inj. Order at 47-48. With respect to the APA claims, the district court again concluded that the grantees were likely to succeed on the merits of their argument that the initial blanket suspension of funds was arbitrary and capricious. Id. at 20-24. The court did not, however, consider the government‘s subsequent “individualized review” of foreign-aid grants because that review was “a distinct . . . agency action that must be challenged as such.” Id. at 27. The district court then turned to the grantees’ constitutional claims. It noted that those claims “are distinct in scope from Plaintiffs’ APA claims, in that they are not premised on the initial blanket directive to suspend funds pending review or an alleged policy to mass terminate aid programs.” Id. at 29. Rather, the constitutional argument “is that, irrespective of any particular agency action that maybe subject to APA review, Defendants are engaging in a unilateral rescission or deferral of congressionally appropriated funds in violation of Congress‘s spending power.” Id.
The district court applied the Youngstown framework to conclude that the grantees were likely to succeed on the merits of their claim that the President had violated the separation of powers. The court determined that the President was “operating in the third category” of Youngstown because he had acted incompatibly with the will of Congress. Prelim. Inj. Order at 30, 32; see also Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Congress had expressed its will in the Appropriations Act (which “explicitly appropriated foreign aid funds for specified purposes“) and in the
The district court made a factual finding that the government had “no intent to spend” the appropriated funds, stating: “[T]he record here shows that Defendants are acting to rescind or defer the funds Congress has appropriated and have no intent to spend them.” Prelim. Inj. Order at 31. That finding was supported by “multiple public” and “contemporaneous statements” by Executive Branch officials, which explained that the purpose of the pause was to “end foreign aid funding” “for policy reasons.” Id. Notably, the government did not dispute the district court‘s finding about its intent. See id. at 32 (“When given the oрportunity in theseproceedings, Defendants have not disputed this is their intent.“).1
Having established that the government had not complied with applicable statutes and did not intend to spend funds appropriated by Congress, the district court considered whether the Executive Branch could justify its actions by “rely[ing] only upon [its] own constitutional powers minus any constitutional powers of Congress over the matter.” Prelim. Inj. Order at 32 (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). The district court acknowledged that the government had “repeatedly asserted . . . that the President has ‘vast and generally unreviewable’ powers in the realm of foreign affairs.” Id. at 33. But the court determined that such assertions did not justify the impoundment of appropriated foreign-aid funds. It reasoned that “the Supreme Court has explicitly rejected” the argument that the President has exclusive power in this sphere and has instead recognized “‘the congressional role in foreign affairs.‘” Id. at 34 (quoting Zivotofsky, 576 U.S. at 21). The district court further reasoned that the President‘s assertion of power to cut off foreign aid was “weaker here than in past invocations in the foreign affairs context,” because this case implicates Congress‘s spending power. Id. at 35. Thus, the district court “reject[ed]Defendants’ unbridled understanding of the President‘s foreign policy power, which would put the Executive above Congress in an area where it is firmly established that the two branches share power, where Congress is exercising one of its core powers, and where there is no constitutional objection to the laws it has made.” Id. at 37-38 (cleaned up).
Finally, the district court concluded that the grantees were likely to succeed on their claim that the government acted ultra vires because the government “do[es] not identify any authority, statutory or otherwise, that would authorize this sort of vast cancelation of congressionally appropriated aid.” Prelim. Inj. Order at 38 n.18.2
Turning to other considerations for granting injunctive relief, the district court found that the grantees would suffer irreparable harm without an injunction and noted that the grantees’ proffered evidence of harm had “gone unrebutted by” the government. Prelim. Inj. Order at 38. In particular, the court described the “ongoing” financial harms threatening “the very subsistence” of the grantees, including their being forced to default on contracts, furlough staff, and shutter some of theiroffices. Id. at 41-42. The district court also concluded that the balance of the equities and the public interest favor the grantees because “there is generally no public interest in the perpetuation of unlawful agency action“; and “the harms that Plaintiffs have suffered—and will continue to suffer absent preliminary injunctive relief—are stark,” including “dire humanitarian consequences” and “devastated businesses and programs across the country.” Id. at 42-43 (cleaned up).
Tailoring “the scope of the injunctive relief” to the “claims that are likely to succeed,” the court issued the following injunction:
Defendants Marco Rubio [Secretary of State], Peter Marocco [Acting Administrator of USAID], Russell Vought [Director of OMB], the U.S. Department of State, the U.S. Agency for International Development, and the Office of Management and Budget . . . are enjoined from giving effect to any terminations, suspensions, or stop-work orders issued between January 20, 2025, and February 13, 2025, for any grants, cooperative agreements, or contracts for foreign assistance. Accordingly, the Restrained Defendants shall not withhold payments or letter of credit drawdowns for work completed prior to February 13, 2025.
The Restrained Defendants are enjoined from unlawfully impounding congressionally appropriated foreign aid funds and shall make available for obligation the full amount of funds that Congress appropriated for foreign assistance programs in the Further Consolidated Appropriations Act of 2024.
Prelim. Inj. Order at 44, 47-48.
The government timely appealed. We have jurisdiction under
II.
“We review the district court‘s decision to grant the Plaintiffs’ request for a preliminary injunction for abuse of discretion, its legal conclusions de novo, and its findings of fact for clear error.” Huisha-Huisha v. Mayorkas, 27 F.4th 718, 726 (D.C. Cir. 2022). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008).
III.
In this case, we consider how the three branches of our federal government operate within the structure created by our Constitution. Congress exercised its Article I powers to pass legislation that mandates the spending of certain appropriated funds: It announced the policy objective of providing humanitarian assistance to developing countries, see
As provided by Article II, the President and the Executive Branch agencies under his leadership were required to take care that those duly enacted laws were faithfully executed. See
But in the court of appeals, the process has broken down. My colleagues in the majority depart from the norms of impartial appellate review to reverse the district court on a ground that was not properly presented by the government. And they announce a new and sweeping constitutional rule in the President‘s favor: According to the majority, the President‘s refusal to execute a law for policy reasons is merely a violation of the statute that he declines to follow and does not present a constitutional cause of action. That re-framing of the case reduces the grantees’ separation-of-powers argument—which targets an executive order that rescinds tens of billions of dollars of funding—to a mere violation of certain procedures in the
Three disparate sets of legal arguments and analyses are now at issue in this case, and laying them out will help to illustrate how we got to this place.
The first set of arguments are the separation-of-powers claims that were asserted by the grantees and analyzed by the district court. The district court held that the President‘s refusal to obligate foreign-aid funds appropriated by Congress likely violated the separation of powers. The district court applied the Youngstown tripartite framewоrk, determined that the President‘s impoundment of appropriated funds was not supported by statutes or the Constitution, and rejected the President‘s assertion of “‘vast and generally unreviewable’ powers in the realm of foreign affairs.” Prelim. Inj. Order at 33. That ruling was the sole basis for the district court‘s determination that the grantees were likely to succeed on the merits and therefore were entitled to a preliminary injunction that required the government to obligate the funds appropriated by Congress.
The second set of arguments are the ones made by the government on appeal. Although the government seeks tooverturn the district court‘s preliminary-injunction order, it does not challenge the constitutional ruling that justified the preliminary injunction. Instead, in its brief on appeal, the government makes a series of arguments that are best described as baffling: The government claims that the grantees have no statutory cause of action to challenge the President‘s failure to spend the appropriated funds. In other words, the government appears to believe that this case turns on whether the Executive violated the Appropriations Act and the
And finally, my colleagues in the majority go in a third direction. They conclude that the grantees do not state a constitutional cause of action and merely allege a statutory violation of the
I cannot agree with my colleagues’ approach. Our job as an appellate tribunal is to review the record in this case and the preliminary-injunction order, based on the arguments properly raised by the parties. Because the government‘s opening brief did not challenge the district court‘s ruling on the separation of powers, which is the sole basis for the preliminary injunction, we should simply affirm the district court‘s conclusion that the grantees are likely to succeed on the merits. My colleagues, however, go out of their way to reach a different constitutionalissue that the government discussed in a scant three paragraphs of its reply brief: The majority holds that thе President‘s refusal to execute a duly enacted law is merely a violation of that law, which does not raise a judicially reviewable constitutional issue. Maj. Op. 16, 18-24. That highly consequential holding ignores the line of cases that reject the existence of a presidential “dispensing power“—i.e., a power that allows the President to pick and choose the statutes that he will execute. See Aiken, 725 F.3d at 261 & n.1; Kendall, 37 U.S. (12 Pet.) at 613. The majority‘s analysis also misreads the case on which it relies, Dalton v. Specter, and creates a split with the Ninth Circuit over the proper interpretation of that precedent. See Murphy Co. v. Biden, 65 F.4th 1122, 1130 (9th Cir. 2023) (holding that the President‘s violation of a statute “will be considered constitutional” if “the President‘s action lacked both statutory authority and background constitutional authority” (cleaned up)). And finally, the majority glosses over the government‘s claim before the district court that the President possesses “‘vast and generally unreviewable’ powers in the realm of foreign affairs” that allow him to impound funds appropriated by Congress for foreign aid. Maj. Op. 20; see also Prelim. Inj. Order at 33. The President‘s reliance on constitutional—not only statutory—authority to defy Congress clearly takes this case out of the narrow confines of the
Because the majority‘s unprecedented constitutional ruling is procedurally and substantively flawed, I respectfully dissent.
A.
My colleagues in the majority decide this case on a ground that was clearly and obviously forfeited by the government.The majority holds that the grantees’ claim that the Executive unlawfully withheld appropriated funds amounts to a mere statutory violation of the
The government‘s opening brief made no constitutional arguments at all—it neither challenged the district court‘s primary ruling on the separation of powers, nor asserted that the grantees had failed to state a constitutional cause of action, even though that latter claim was considered and rejected by the district court in the opinion under review. See Prelim. Inj. Order at 37 n.17. Indeed, the government cited neither Youngstown nor Dalton in its opening brief.3 Thus, under our caselaw, any claim based on Youngstown or Dalton is forfeited. See World Wide Mins., Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1160 (D.C. Cir. 2002) (“As we have said many times before, a party waives its right to challenge a ruling of
the district court if it fails to make that challenge in its opening brief.“). And we normally will not address a forfeited claim absent “exceptional circumstances” where “errors . . . seriously affect the fairness, integrity, or public reputation of judicial proceedings.” U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (cleaned up). Here, the government‘s “failure to pursue one of several available lines of argument is hardly an ‘error’ of the sort that would warrant exercising our narrowly circumscribed remedial authority.” Id.
Under “the principle of party presentation . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” United States v. Sineneng-Smith, 590 U.S. 371, 371-72 (2020) (cleaned up). We have repeatedly explained why we adhere to the rule of party presentation and generally refuse to consider forfeited claims. “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). “Considering an argument advanced for the first time in a reply brief, then, is not only unfair to an appellee, but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered.” McBride v. Merrell Dow & Pharms., 800 F.2d 1208, 1210-11 (D.C. Cir. 1986) (cleaned up). Moreover, “[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in the judgment). Thus, “courts normally are not available to relieve parties from the operation of their own litigation strategies,” such as a decision to pursue one legal theory over another. Conax Fla. Corp. v. United States, 824 F.2d 1124, 1132 (D.C. Cir. 1987). Applyingthose principles, we have said that when a party “fail[s] to advance any reasons in [its] opening brief why [the] judgment should be reversed,” we “ordinarily will refuse to disturb [the] judgment[].” McBride, 800 F.2d at 1210. That is the proper course of action here, where the government has raised no complaints at all about the district court‘s central ruling on the separation of powers.
Of course, our application of the forfeiture rule is not ironclad, and it is not difficult to find one or two exceptions that, when stretched, might arguably support a court‘s decision to reach a forfeited issue. That is what the majority does here. But I question the wisdom of making an exception in a case such as this one. The party presentation principle preserves the court‘s role as a neutral arbiter. See Greenlaw v. United States, 554 U.S. 237, 244 (2008) (“Courts do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.” (cleaned up)). We must apply the forfeiture rule consistently to safeguard the public‘s faith in the court‘s impartiality. Bending a generally applicable rule to benefit a particular party makes us vulnerable to charges of favoritism and bias. Cf. Texas v. United States, 798 F.3d 1108, 1114 (D.C. Cir. 2015) (“Rules are rules, and basic fairness requires that they be applied evenhandedly to all litigants.“). That is especially so when the case before the court involves the President of the United States and the court chooses to announce a new constitutional ruling that favors him, even though that constitutional theory was not urged by the government‘s representatives in court.
My colleagues acknowledge the government‘s failure to raise Dalton and concede that the “oversight is hard to understand.” Maj. Op. 16. Yet, they nevertheless reach the Dalton argument, stating that the constitutional cause-of-actionissue is “not forfeit” because the government‘s “entire opening brief proceeds from the premise that this dispute raises a statutory claim—and therefore by implication not a constitutional one, despite the district court‘s characterization otherwise—which is in effect the Dalton argument that the government advanced below.” Id. at 17-18. That convoluted logic takes a far more permissive view of issue preservation than our precedents allow. We routinely refuse to “put flesh on [the] bones” of arguments raised “only in the most skeletal way,” Gov‘t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019), and certainly do not sua sponte supply arguments that experienced lawyers have chosen not to pursue, see Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“[A] litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.“); Larson v. Navy, 525 F.3d 1, 5 (D.C. Cir. 2008) (“We decline to revive this case by reading into [the party‘s papers] an argument not adequately presented.“).
To make an exception in this case, the majority misapplies narrow rulings in United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022), and U.S. National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439 (1993). Those cases do not support consideration of a forfeited argument that is not antecedent to the issues raised by the appellant. See Hillie, 39 F.4th at 681-84 (court asked to construe statute must consider caselaw “as to how to construe the same or similar phrasing,” even if not cited by the parties); Nat‘l Bank, 508 U.S. at 447 (court asked to construe statute could answer “antecedent . . . and ultimately dispositive” question of whether statute remained in force (cleaned up)). The majority asserts that the Dalton issue is antecedent to determining the scope of the cause of action that “the grantees seek.” Maj. Op. 17 (emphasis added). But this is the government‘s appeal. Here, the government argues that the grantees could not enforce the
Appropriations Act and the Impoundment Control Act through an APA suit. Whether the district court properly ruled on whether the grantees have a constitutional cause of action is in no way “antecedent . . . and ultimately dispositive” of the statutory issue raised by the appellants in this case. Nat‘l Bank, 508 U.S. at 447 (cleaned up). In any event, the rule that “a party cannot forfeit or waive recourse to a relevant case just by failing to cite it” kicks in only “once an argument is before us.” Hillie, 39 F.4th at 684 (emphasis added). Likewise, only “when an issue or claim is properly before the court” does it follow that “the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Nat‘l Bank, 508 U.S. at 446 (cleaned up) (emphasis added). The cited cases are inapplicable here because the government did not put the Dalton argument “properly before” us. Precedents do not allow a court to revise the litigation strategy of a party and to provide that party with a better argument that allows it to win the case. I therefore disagree with the majority‘s decision to forgive the government‘s poor litigation choices and to award the President a big win on an issue that the government‘s lawyers did not mention in their primary brief.4
B.
1.
In my view, the grantees clearly state a justiciable constitutional claim — a violation of the separation of powers. It is settled law that private parties can sue to enjoin government officials from violating the Constitution, including under a “separation-of-powers claim.” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (collecting cases). And because “the separation of powers is designed to preserve the liberty of all the people[,] whenever a separation-of-powers violation occurs, any aggrieved party with standing may file a constitutional challenge.” Collins v. Yellen, 594 U.S. 220, 245 (2021); see also Bond v. United States, 564 U.S. 211, 223 (2011) (“If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.“); Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (stating that “the President‘s actions may . . . be reviewed for constitutionality“).5
The facts found by the district court support the grantees’ separation-of-powers claim. The district court found that the President withheld billions of dollars in appropriated foreign-aid funding for policy reasons and that he had no intention of ever spending the funds. In addition, the district court found that the President had “not undertaken the procedures required for the impoundment of congressionally appropriated aid” under the Impoundment Control Act. Prelim. Inj. Order at 32. Moreover, as a legal matter, the district court rejected the government‘s assertion that the President has “‘vast and generally unreviewable’ power to impound congressionally appropriated aid . . . in the foreign affairs context.” Id. at 35. The district court thus established that the President acted without statutory or constitutional authority when he withheld the appropriated foreign-aid funds.
The power that the President attempted to assert — a general entitlement to disobey duly enaсted laws for policy reasons — is also known as “dispensing power.” See Kendall, 37 U.S. (12 Pet.) at 613. It is uncontroversial that such a presidential power does not exist. See id. (“[A] dispensing power . . . has no . . . support in any part of the constitution[.]“); Matthews v. Zane‘s Lessee, 9 U.S. (5 Cranch) 92, 98 (1809) (Marshall, C.J.) (“The president cannot dispense with the law, nor suspend its operation.“); Nat‘l Treasury Emps. Union, 492 F.2d at 604 (“That constitutional duty” “to ‘take Care that the Laws be faithfully executed‘” “does not permit the President to refrain from executing laws duly enacted by the Congress as those laws are construed by the judiciary.” (quoting
In Aiken, we considered the Nuclear Energy Commission‘s failure to comply with a provision of the Nuclear Waste Policy Act that required the agency to “issue a final decision approving or disapproving” an application to store nuclear waste at Yucca Mountain. 725 F.3d at 257 (quoting
In Kendall, the Supreme Court rejected the notion of a presidential dispensing power in the specific context of spending appropriated funds. There, a new Postmaster General had “re-examined the contracts entered into with his predecessor . . . and directed that the allowances and credits should be withdrawn.” 37 U.S. (12 Pet.) at 608. In response, Congress passed a law directing the settlement and payment of the claims. When the Postmaster General still “refuse[d] and neglect[ed]” to pay part of the sum, affected postal contractors sued to compel payment. Id. at 609. In defense of his actions, the Postmaster General argued that he was “subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law,” and that “this right of the President [grew] out of the obligation imposed upon him by the constitution[] to take care that the laws be faithfully executed.” Id. at 612-13. The Supreme Court declined to “cloth[e] the President with” such “a power entirely to control the legislation of congress.” Id. at 613. It said: “To contend that the obligation imposed on the President to see the laws faithfully executed implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.” Id.
Like in Aiken and Kendall, the President‘s refusal to implement the Appropriations Act here creates a conflict between the Legislative Branch and the Executive Branch of constitutional dimensions. Just as the Executive‘s refusal to execute the Nuclear Waste Policy Act in Aiken had “serious implications for our constitutional structure,” 725 F.3d at 267, so too does the President‘s refusal to execute the Appropriations Act. In this case, the President decided that he would not spend statutorily appropriated funds because that would not align with his policy preferences. See 90 Fed. Reg. at 8619. We held in Aiken that this is impermissible. We should do the same here. See Aiken, 725 F.3d at 260 (“[T]he President and federal agencies may not ignore statutory mandates or prohibitions,” including congressional appropriations, “merely because of policy disagreement with Congress.“).
2.
My colleagues in the majority hold that we cannot review the separation-of-powers violation alleged by the grantees because there is no “cause of action” or procedural vehicle to bring it before the court. Maj. Op. 18-24. They characterizе the grantees’ challenge to the President‘s impoundment of funds as a statutory argument that the President violated the Appropriations Act and Impoundment Control Act; and they determine that Dalton forecloses the grantees from transforming that statutory claim into a judicially reviewable constitutional violation. But the majority offers no persuasive support for its “no-cause-of-action” legal theory, and that theory is inapposite because the President relied on his constitutional authority over foreign affairs to justify the impoundment of funds, which makes Youngstown the correct analytical framework.
i.
The linchpin of the majority‘s legal analysis is the Supreme Court‘s opinion in Dalton v. Specter, but the majority misreads the holding in that case. Maj. Op. 16 (“Here, the grantees assert a non-statutory right to vindicate separation-of-powers principles but they are foreclosed from doing so by Dalton v. Specter, 511 U.S. 462 (1994).“). Although Dalton did reject the proposition that “whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-of-powers doctrine,” id. at 471, it did not hold that such an ultra vires action by a President can never be a constitutional violation. In other words, just because the Court determined that not all such claims implicate the Constitution, that does not mean that none of them ever do.
The relevant portion of Dalton soundly refutes an argument advanced by a circuit court: that “every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.” 511 U.S. at 472. The Court reasoned that the two types of claims are distinct, citing its cases that “often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority.” Id. (collecting cases). Significantly, the Court also noted that it had recognized in Franklin v. Massachusetts that “[p]residential decisions are reviewable for constitutionality,” Dalton, 511 U.S. at 471, but it was concerned that “if every claim alleging that the President exceeded his statutory authority were considered a constitutional claim, the exception identified in Franklin would be broadened beyond recognition,” id. at 474. That statement shows that the Court did not mean to preclude constitutional review of all presidential actions that exceed statutory authority — it just did not want to unduly broaden the exception that permits such review.
My colleagues’ view is that Dalton forecloses any attempt to “assert a non-statutory right to vindicate separation-of-powers principles.” Maj. Op. 16. They say that the grantees “may not bring a freestanding constitutional claim if the underlying alleged violation and claimed authority are statutory.” Id. at 5. But they support that interpretation only with a comment that “plaintiffs would otherwise be able to avoid statutory limits on review by reframing any alleged statutory violation by the President аs a constitutional one.” Id. at 17-18. Their suggestion that it should not be too easy for plaintiffs to bring constitutional claims does not necessitate barring all such claims. Moreover, they do not grapple with the implications of their interpretation. As the Ninth Circuit has recognized, it “cannot be right . . . that as long as an official identifies some statutory authorization for his actions, doing so makes any challenge to those actions statutory and precludes constitutional review.” Sierra Club v. Trump, 929 F.3d 670, 697 (9th Cir. 2019).7
First, Murphy Co. cites Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where the Ninth Circuit refused to grant a stay of an injunction preventing the government from reprogramming Department of Defense funds for construction of a border wall. The Supreme Court subsequently granted a stay, reasoning that the government had made “a sufficient showing at this stage that the plaintiffs have no cause of action.” Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.) (emphasis added); see also id. (Breyer, J., concurring in part and dissenting in part) (“This case raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power.“); Nken, 556 U.S. at 434 (requiring a stay applicant to make a “strong showing that he is likely to succeed on the merits” (quotation omitted)). Second, Murphy Co. cites the merits decision in the same case. Despite the Supreme Court‘s determination that the government made a strong showing that plaintiffs lacked a cause of action, a divided panel of the Ninth Circuit held that Sierra Club had “both a constitutional and an ultra vires cause of action.” Sierra Club v. Trump, 963 F.3d 874, 887 (9th Cir. 2020). Unsurprisingly, the Court promptly granted certiorari to address the cause of action issue. See Trump v. Sierra Club, 141 S. Ct. 618 (2020) (mem.); see also Br. for Pet‘r at (I) (presenting question of whether Respondents had a “cognizable cause of action“). Ultimately, the arrival of the Biden administration meant there was no longer a live controversy and the Court simply vacated the Ninth Circuit‘s judgment without issuing an opinion. Biden v. Sierra Club, 142 S. Ct. 46 (2021) (mem.). But for that turn of events, this question might already have been resolved by the Supreme Court.