US NGOs decide to forego legal action against Trump administration — for now

WASHINGTON — While the U.S. foreign aid community waits for a decision from the Trump administration on a funding rescission, the country’s largest coalition of international NGOs has decided not to pursue immediate legal action against the White House.

In an Aug. 15 email, obtained by Devex, Interaction President Sam Worthington outlined the alliance’s position on a potential lawsuit against the Trump administration, and concluded that InterAction “will not join any immediate legal action.”

The group did not rule out suing the White House in the near future, but has opted to wait and see how the current political situation plays out, while shifting its focus from the money that is immediately threatened by a potential rescission to a longer term argument about “principle and the legality and the separation of powers.”

When asked by Devex about the decision, Worthington wrote: “during this time, when foreign assistance cuts are a real possibility, it’s InterAction’s job to help our members collectively advocate for solutions, and provide them with information and options on how to mitigate the risks of harmful policies that have a long-term effect.”

Since reports emerged earlier this month that the White House was freezing and evaluating billions of dollars of foreign assistance funding, the U.S. aid community has been weighing its options to respond. So far, aid supporters and coalitions — including InterAction — have largely opted for an advocacy-focused approach, endorsing letters and working with U.S. lawmakers and the media to signal their opposition to the administration’s plans.

Some groups have suggested a more direct response, including a possible lawsuit against the Trump administration for harm caused by a potential rescission and the 2% spending cap the Office of Management and Budget has imposed on unobligated foreign aid funding. Many — including lawyers, the Government Accountability Office, and leading members of Congress — have argued that a rescission would be illegal, since it would circumvent the constitutionally mandated appropriations process, which grants the legislative branch authority to fund the government.

Even if a lawsuit against the Trump administration succeeded by immediately securing a legal stay that would free up funding frozen by a rescission request, the NGO coalition sees significant risk in pursuing that course of action, according to Worthington.

“Of key concern are the optics and how certain steps at the wrong time or in the wrong way might jeopardize bipartisan support,” Worthington wrote in the Aug. 15 email.

Some of the risks of immediate legal action that InterAction has identified include “not being able to do it well,” given the short timeline, and lack of information about how to build a strong legal case.

They also include “painting us all as solely focused on the money, and a part of the ‘aid industrial complex’ as opposed to focused more on the deeper constitutional legality and harm to both institutions and people around the world,” Worthington wrote.

“We might win the battle only to lose the war by pushing foreign aid into a high-profile social media storm that then really hurts our bipartisan approaches,” he added.

The alternative option InterAction sees — and which it appears to favor — is a “more measured approach,” which would allow the “current politics to play out a bit more.” This would involve waiting to “see if a rescission request drops, what it includes, and then whether Congress is able to act.” In this scenario the group might still consider pursuing legal action in September or October.

“A potential disadvantage of this delayed approach to filing suit is that it would not help the current expiring money to flow, but that would not be the point. Rather, the point would be to get a ruling that the administration’s action was illegal,” Worthington argued.

The political dynamic has shifted since Worthington sent the email last week, suggesting that less money than originally thought could be at stake.

Last week, most people with visibility into the administration’s plans expected the White House to issue a rescission request worth upwards of $4 billion. This week, news reports suggested that Secretary of State Mike Pompeo may have been successful in convincing President Donald Trump not to pursue a full rescission, but instead to focus on reprogramming funds away from specific countries, including Pakistan and Central America’s Northern Triangle.

While Devex has spoken to sources with knowledge of the situation who confirm that general narrative, they have all declined to draw any firm conclusions about what President Trump will ultimately decide to do.

Pompeo has not spoken publicly about the rescission, but was widely credited with stopping a similar effort at the last minute last summer.

Asked about the rescission proposal on Sunday, President Trump offered a mixed response.

“We’ll negotiate it out. I’ve cut back a lot on countries. We give billions of dollars to countries that don’t even like us, and I’ve been cutting that a lot,” Trump said.

“In some cases I can see it both ways. In some cases these are countries that we should not be giving to,” Trump said.

Trump was then asked whether he thought cutting foreign aid makes the U.S. safer, to which he responded, “I don’t think so, no I don’t think so. And if I thought it would, I would probably do it.”

On Tuesday, Trump told reporters that the administration still has "some things that are on the table very much."