US non-profit groups have vowed to fight on after losing their court bid this week to compel the Trump administration to restore Congress-approved foreign aid it had stopped in January.

A three-judge panel of the US Court of Appeals ruled 2-1 to overturn a District Court ruling that compelled the US government to restore some $10 billion in foreign aid authorised by Congress for fiscal year 2024, before Trump assumed office.

According to Wednesday’s ruling, only the Government Accountability Office, Congress’s independent watchdog, can challenge the president’s actions in court in terms of the Impoundment Control Act.

But Judge Florence Pan issued a scathing dissenting opinion: “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 evades its constitutional responsibility to delineate the obligations and powers of each branch of our government,” added Pan.

She also accused her colleagues, Judges Karen Henderson and Gregory Katsas, of derailing “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’.” 

‘Seek permanent relief’

On 10 February, Public Citizen filed the lawsuit on behalf of AVAC, a global HIV advocacy group, and the Journalism Development Network, seeking emergency relief from a funding freeze put in place by an executive order issued the day that Trump took office. 

Public Citizen attorney Lauren Bateman described the ruling as “a significant setback for the rule of law and risks further erosion of basic separation of powers principles”. 

Bateman said the lawsuit “will continue as we seek permanent relief from the administration’s unlawful termination of the vast majority of foreign assistance”, adding that “countless people will suffer disease, starvation, and death from the administration’s unconscionable decision to withhold life-saving aid from the world’s most vulnerable people.” 

AVAC executive director Mitchell Warren said in a statement that the court ruling “hands the administration another victory in their intentional effort to destroy decades of progress in global development, diplomacy, public health and human rights”.

“Time and again, this administration has shown their disdain for foreign assistance and a disregard for people’s lives in the US and around the world,” added Warren.

“More broadly, this decision, which we will appeal to the extent possible, further erodes Congress’s role and responsibility as an equal branch of government, and the majority opinion makes the court complicit.”

The Trump administration has closed the US Agency for International Development (USAID), attempted to slash the budget of the President’s Emergency Plan for AIDS Relief and withdrawn from the World Health Organization.

The US Senate recently agreed to exempt PEPFAR from a planned $400 million cut, proposed as part of a $9.4 billion rescission package put forward by Trump.

But this relief is likely to be short-lived as US State Department officials are developing a plan to transform PEPFAR from an entity that tackles HIV to one that is broadly focused on protecting and promoting “American interests”, according to the New York Times.

The new entity would be based on bilateral agreements with low-income countries focused on diseases that could threaten the US.

Dr Jirair Ratevosian, a global health expert at Duke University and previous PEPFAR chief of staff, said that the Trump administration has “made it very clear that they want to carry on with aggressive transition planning” for PEPFAR.

“Transition planning is not a bad idea, but it must be done right, with timetables, developing indicators, matching government buy-in, getting community input, etc,” Ratevosian said.

Warren said that the court decision “exacerbates an already grave humanitarian crisis” and urged policymakers and the courts to “act urgently to reverse this dangerous precedent”.

“The health and lives of millions – not to mention the underpinnings of our democracy – hang in the balance.”

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