A federal appeals court voted 2-1 on Wednesday to lift an order requiring the Trump administration to resume billions of dollars in foreign aid payments.

The divided U.S. Court of Appeals for the District of Columbia Circuit panel found a lower judge erred when he restored the flow of funds in March.

Two groups of grant recipients sued over allegations the cancellations infringe on the separation of powers since Congress had appropriated the money, but the panel ruled they can’t bring such a claim.

“The district court erred in granting that relief because the grantees lack a cause of action to press their claims. They may not bring a freestanding constitutional claim if the underlying alleged violation and claimed authority are statutory,” U.S. Circuit Judge Karen Henderson wrote for the majority.

An appointee of former President George H.W. Bush, Henderson was joined by U.S. Circuit Judge Gregory Katsas, whom Trump appointed. They noted federal law still allows the Comptroller General to step in and sue.

U.S. Circuit Judge Florence Pan dissented. She was appointed by former President Biden. 

“The majority holds that when the President refuses to spend funds appropriated by Congress based on policy disagreements, that is merely a statutory violation and raises no constitutional alarm bells,” Pan wrote.

Pan called the decision “as startling as it is erroneous,” writing that it latches onto a legal argument the administration hadn’t fully developed. 

“My colleagues in the majority excuse the government’s forfeiture of what they perceive to be a key argument, and then rule in the President’s favor on that ground, thus departing from procedural norms that are designed to safeguard the court’s impartiality and independence,” Pan wrote. 

Trump on his first day in office ordered the U.S. Agency for International Development (USAID) to freeze foreign assistance payments, leading to a blitz of litigation that quickly reached the Supreme Court at an earlier stage of the case. 

The Justice Department appealed again after U.S. District Judge Amir Ali in March ruled the administration must make available foreign assistance that Congress appropriated for fiscal year 2024. Ali was nominated to the bench by Biden. 

Ali’s order also required USAID pay out bills owed through Feb. 13 under existing contracts and grants, but that part of the injunction was not on appeal. Court records indicate substantially all of the owed payments are now complete.  

“Today’s decision is a significant setback for the rule of law and risks further erosion of basic separation of powers principles,” said Lauren Bateman, an attorney at Public Citizen, a consumer advocacy group that represents the grant recipients who are suing.

“We will seek further review from the court, and our lawsuit will continue regardless as we seek permanent relief from the Administration’s unlawful termination of the vast majority of foreign assistance,” she continued. “In the meantime, 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.”