A US district judge found the administration's withholding of $11.5bn in congressionally approved foreign aid likely illegal and issued a preliminary injunction requiring release of the funds before the fiscal year ends. The court emphasized that the executive branch has discretion over how to spend appropriated funds but not whether to expend them, and that rescission requires congressional approval. The administration filed a notice of appeal. The withheld funds include nearly $4bn for USAID global health programs and over $6bn for HIV/AIDS programs. The president used a pocket rescission, a rarely used end-of-year tactic.
To be clear, no one disputes that defendants have significant discretion in how to spend the funds at issue, and the court is not directing defendants to make payments to any particular recipients, wrote Ali, who was nominated by Joe Biden. But defendants do not have any discretion as to whether to spend the funds. Ali said Congress would have to approve the rescission proposal for the administration to withhold the money.
He used what is known as a pocket rescission. That is when a president submits a request to Congress toward the end of a current budget year to not spend approved money. That late notice means Congress cannot act on the request in a required 45-day window and the money goes unspent as a result with the fiscal year drawing to a close at the end of September. It is the first time in nearly 50 years a president has used the tactic.
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