Constitutional lawyer Alan Dershowitz said Wednesday evening that Supreme Court Associate Justice Samuel Alito’s dissent in the Supreme Court’s ruling in a case involving an effort to freeze $2 billion in foreign aid payments is right “on the merits.”
The Supreme Court declined Wednesday morning to vacate an injunction by United States District Judge Amir Ali of the District of Columbia in a 5-4 ruling, requiring President Donald Trump’s administration to pay the $2 billion to various organizations for work already completed. The funds had been frozen since Jan. 20, when Trump signed an executive order directing a review of foreign aid programs.
Dershowitz questioned if a federal district court judge should be able to issue a nationwide injunction during “The Dershow.”
“In any event, this decision was five to four, and it sends a very powerful message, I think, to the Trump administration: You cannot ignore checks and balances. You cannot ignore the Supreme Court. You may agree, you may disagree, but the Supreme Court is gonna weigh in, and they did weigh in in this case, five to four to be sure, and the case is coming back to the Supreme Court,” Dershowitz said.
“What this is, although a final decision on this amount of aid that, that has already been earned, it’s not a final decision on the whole issue of who has the power to withhold, and if Congress has authorized it. Those are very complex issues,” Dershowitz continued.
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In his dissent, Alito criticized the Supreme Court for failing to prevent federal district court judges from abusing power.
“Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?” Alito wrote in his dissent, joined by Associate Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. “The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise. I am stunned.”
Chief Justice John Roberts and Associate Justice Amy Coney Barrett joined with the high court’s three liberal associate justices, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, in the ruling.
“I think the message is that the Supreme Court is not staying out of this; it’s jumping in with all feet. It’s gonna be in this battle, it’s gonna be serving as a check and balance on the administration, and for those of you who are structurally supportive of our tripartite system of government, that’s good news,” Dershowitz said. “For those of you who put your support for Trump or of the Republican Party over constitutionalism, not such good news for you. You’d rather have a clear path to allowing the administration to get its way, but it’s not gonna happen, it’s not gonna happen, and as somebody who cares deeply about the Constitution, I have mixed feelings about this.”
Dershowitz continued, saying “I happen to agree with Alito on the merits that one judge shouldn’t be able to enjoin the actions of the executive, but I also happen to agree that this is something the Supreme Court should be interested in and that the system of checks and balances should be applied in a vigorous way, and so it’s a mixed, a mixed result, but the Supreme Court is shaking its finger. Five justices are shaking their finger at the Trump administration and saying essentially, don’t ignore us. We still have the power to tell the executive it can’t do something, and President Trump had said, to his credit, he will not ignore Supreme Court decisions, and he hasn’t ignored this decision, up for the money, will be freed up.”
Referring to Trump, Dershowitz said, “He will challenge it, he will bring to bear other cases and he will try to limit it in whatever way he can, and that’s certainly his prerogative as president, as the executive branch, but as long as he doesn’t violate a direct directive of the Supreme Court the way Andrew Jackson said he would, when he told the chief justice, you wrote the decision, now enforce it. No, he’s not gonna, he’s not going to do that. I hope he doesn’t do it now. I’m pretty confident he’s not going to do it. So what we see is the system of checks and balances working in a way that I think the framers had in mind.”
The Department of Government Efficiency (DOGE), which Trump established by rebranding the United States Digital Service in a Jan. 20 executive order, conducted layoffs of federal government employees and identified at least $105 billion in savings, an average of $652.17 per taxpayer, according to its website.
DOGE’s actions have been challenged in courts with mixed results. A federal judge recently blocked a memo sent to federal agencies instructing them to dismiss thousands of probationary workers, while other courts have allowed DOGE to carry out its activities.
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