On Wednesday, the Supreme Court entered the fray about the US $2 billion in foreign aid, issuing a 5-4 decision that refused to allow for a continued freeze of the funds. To be clear, they didn’t say the funds must be unfrozen; they said that they would not intervene and would allow a lower court order to stand. On February 13, Judge Amir H. Ali of the U.S. District Court for the District of Columbia had found that the executive branch’s decision to freeze all foreign aid funds was likely unlawful, and was likely to cause irreparable harm while the case was being fully debated and decided in courts. Therefore, he issued a temporary restraining order against the order—requiring the funds to be unfrozen while the case continued in court.
After this series of rulings, Elon Musk and others have taken to social media to call for his removal from the bench, and even issue threats on his life. As is already very clear 7 weeks in, threatening political adversaries and instilling fear and chaos far and wide are a major tactic being used by this administration to get their way.
This $2 billion at the center of this legal battle is for money Congress already appropriated, and in many cases already earmarked for particular projects. The Trump Administration is just saying “We don’t care what Congress said, we’re taking back the money.” But of course, our government is supposed to be run on a system of checks and balances. The executive branch is not all-powerful by design, and there are things that only Congress has the power to do: like appropriation of federal funds.
The $2 billion has huge implications for health of people around the world. Without it, thousands of children will die of malnutrition. Thousands of people will become infected with HIV, and thousands more will die of AIDS. Tuberculosis will continue to spread untreated. Outbreaks like Ebola might not be able to be contained. This is not a hypothetical argument, and more details about how and why this will happen are below in this post.
Furthermore, in many cases, this $2 billion is paying for services already rendered. Based on the encouragement and financial commitment of the US, people around the world have already taken actions to provide aid to people in low and middle-income countries who don’t otherwise have access to life-saving healthcare, vaccines to prevent illness, or food to eat. Now the US government is saying “Never mind, we changed our minds and you can’t have the money we promised after all.” Trump has a history of apparently thinking this is OK, but it is not. These “family values” we keep hearing about so much in the US are supposed to include following through on your promises, not stiffing the people who have held up their end of the bargain you made together.
Unlike what Justice Alioto apparently thinks in this case, it is absolutely normal for a judge to make decisions like Judge Amir H. Ali did. Judge Ali did not decide where the $2 billion should be spent—Congress did. Our elected representatives in Congress. It is the role of our country’s judges to decide whether specific activities are unlawful. And sometimes, unlawful activities cause immediate and irreparable harm to others, so while we’re waiting for a complex case to make its way through our slow court system, there are temporary orders made. As Nicolas Sansone from Public Citizen Litigation Group, which brought the case on behalf of the plaintiffs (those alleging that the executive order is unlawful), said: When in an emergency case a judge finds something to be “likely unlawful” but also that there is “irreparable harm likely to be suffered if the unlawful practice is not paused while the litigation continues,” then it is very common for the judge to issue a temporary restraining order, which “commonly require a return to the status quo immediately before the likely unlawful practice was instituted”.
What’s actually unusual in this case is that there was a clear court order (the temporary restraining order that compelled the federal government to unfreeze the funds and prevent the irreparable harm likely to be suffered—legal speak for “people will die, among other things that cannot be undone later”), yet over a 2 week period the executive branch took NO action to comply with the order. They did nothing, because they think they are above the law. So the judge was forced to take action (again) to try to force them to comply, on Feb 25th, giving them a deadline by which time they needed to start the flow of money back to these regions were people are dying because of these actions.
I am not a lawyer, so why have I spent more than 700 words of a post about public health talking about a legal case? To me and to so many others, this is not just about the law. It is literally about life or death:
–As I’ve said before, if you are under the impression that PEPFAR was exempted from the funding freeze because—after the public was outraged and worried people would die—Marco Rubio said that life-saving humanitarian assistance could continue, you’d be wrong. PEPFAR has absolutely been debilitated, with wide-ranging negative effects. According to the scientists at Impact Counter and endorsed by the well-reputed HIV Modelling Consortium, as of this posting an estimated 18,395 people have likely already died since the funding freeze was implemented by executive order on January 24th. Nearly 2,000 infants have died. (Yes, this is a mathematical model to estimate the number of people who’ve died, since the infrastructure we might otherwise use to count actual deaths and be sure has been frozen or dismantled. Do you see how this works?) It doesn’t matter if those 20,000+ people in less than 7 weeks are not Americans. They are human beings, and for the last 60 years the United States has proudly taken steps to help keep other humans alive. Even if our government decided to change our foreign policy and stop caring about humans not born with American citizenship, this particular money had already been committed, and programs have been built expecting it to be there. Yanking it all at once and with no warning is cruel, deadly, and (until January) un-American. To me it is unacceptable, and I hope it feels that way to you, too.
—Ebola is currently spreading in Uganda, and this funding freeze means that health officials in Uganda are having great difficulty procuring the laboratory supplies, protective gear, and other equipment needed to try to quell the outbreak. This is obviously very bad. You might remember that in 2014 there was a major outbreak of Ebola in Liberia, Sierra Leone, and Guinea, and the US CDC and USAID both played a major role in addressing the outbreak and trying to stop the spread, in addition to the US military being deployed—it was that serious. The US Congress voted for an emergency appropriation of $5.4 billion for that response, and still more than 11,000 people died, and it made its way to the US, with 11 cases on US soil and 2 people dead. Imagine what could happen if we invest $0 and zero effort in containing this new outbreak?
–What else has been cancelled as a result of this funding freeze? Here’s only a partial list: HIV projects run by the Elizabeth Glaser Pediatric AIDS Foundation, which were providing lifesaving medication to 350,000 people in Eswatini, Lesotho, Tanzania—including 10,000 children and 10,000 pregnant women who, without those medications, are at much higher risk of transmitting HIV to their babies; 10% of the medication budget and all operating costs of the Global Drug Facility, which supplies most of the world’s tuberculosis medications—just last year they provided tuberculosis treatment to nearly three million people, including 300,000 children; a project run by FHI 360 that supported community health workers’ efforts to go door-to-door seeking children in Yemen who are malnourished in great numbers as a result of that country’s ongoing civil war; the Demographic and Health Surveys, a data collection project in 90 countries that were often the only source of information these countries had on maternal mortality, children’s nutrition, reproductive health, and HIV; and pregnancy and birth-related health services for 5.7 million women and 3.9 million children in Nepal.
Instead of hoping that people in the US sponsor a child in a low-income country and improve lives literally one-by-one, US foreign aid has been a way for taxpayer dollars to improve lives by the millions every year, in a far more efficient and effective way. Even worse, this is being done mostly in the name of “reducing government waste.” But US taxpayer dollars have already been spent on food, medicine, and equipment. This freeze means those supplies we already bought are being left to rot in warehouses, expire on shelves, or sit gathering dust. They are being wasted. Oh, the irony.