United States Court of Appeals
                                            F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
                                                       ____________

No. 25-5097                                                                             September Term, 2024
                                                                                                   1:25-cv-00400-AHA
                                                                                                   1:25-cv-00402-AHA

                                                                           Filed On: August 28, 2025

Global Health Council, et al.,

                     Appellees

          v.

Donald J. Trump, in his official capacity as President
of the United States of America, et al.,

                     Appellants


------------------------------

Consolidated with 25-5098


          BEFORE:                Srinivasan, Chief Judge, and Henderson**, Millett****, Pillard, Wilkins,
                                 Katsas**, Rao**, Walker**, Childs*, Pan***, and Garcia****, Circuit Judges

ORDER

         Appellees’ petition for rehearing en banc and supplement were circulated to the full court, and a
response and a vote were requested. Thereafter, a majority of the judges eligible to participate did not
vote in favor of the petition. Upon consideration of the foregoing, the motion for leave to file a brief as
amicus curiae, the motions for invitation to file briefs as amici curiae, and the filed and lodged briefs, it
is

          ORDERED that the petition for rehearing en banc be denied. It is

          FURTHER ORDERED that the motion for leave to file a brief as amicus curiae and the motions
for invitation to file briefs as amici curiae be granted. The Clerk is directed to file the lodged briefs.


                                                        Per Curiam


                                                                               FOR THE COURT:
                                                                               Clifton B. Cislak, Clerk

                                                                     BY:       /s/
                                                                               Daniel J. Reidy
                                                                               Deputy Clerk




* Circuit Judge Childs did not participate in this matter.

** A statement by Circuit Judge Katsas, joined by Circuit Judges Henderson, Rao, and Walker,
concurring in the denial of rehearing en banc, is attached.

*** A statement by Circuit Judge Pan, dissenting from the denial of rehearing en banc, is attached.

**** A statement by Circuit Judge Garcia, joined by Circuit Judge Millett, respecting the denial of
rehearing en banc, is attached.
     KATSAS, Circuit Judge, concurring in the denial of
rehearing en banc: For all of its rhetoric about the panel
opinion making a constitutional claim “disappear,” post at 1,
the dissental correctly characterizes the grantees’ claim as one
alleging that “the President violated the separation of powers
by refusing to spend mandatory congressional appropriations
for foreign aid,” id. at 4. That claim turns on whether the
relevant appropriations were mandatory, which makes it
statutory for reviewability purposes under Dalton v. Specter,

 (1994).

     The dissental also stresses that the government, in
defending against this claim below, unsuccessfully asserted a
freestanding Article II power to disregard even mandatory
appropriations in the area of foreign assistance. Had the
government challenged the district court’s rejection of that
Article II defense in this Court, we could freely have
considered it under Youngstown Sheet & Tube Co. v. Sawyer,

 (1952). But the government did not make that
argument on appeal, so the panel had no occasion to address
either the reviewability or the merits of that Article II
argument.
PAN, Circuit Judge, dissenting from the denial of rehearing en
banc:

     The grantees in this case brought a textbook separation-of-
powers claim: They argued that when the President refused to
spend foreign-aid funds that Congress had appropriated, he
infringed on Congress’s power of the purse. The government
responded by arguing that the President’s actions were
permissible because he has “vast and generally unreviewable”
“powers in the realm of foreign affairs” under “Article II of the
Constitution.” Defs.’ Opp’n to Pls.’ Mots. for Prelim. Relief
10, 24–26. The district court considered the constitutional
claim before it, determined that the grantees were likely to
succeed on the merits, and entered a preliminary injunction
requiring the government to obligate the funds that the
Executive likely had wrongfully withheld.

     But on appeal, a panel of this court rewrote the grantees’
constitutional claim and made it disappear.              In an
unprecedented ruling, the panel interpreted Dalton v. Specter,

 (1994), to foreclose private parties from bringing
a constitutional cause of action when their constitutional
argument overlaps with a claim that the President violated or
exceeded his statutory authority.           Under the panel’s
interpretation, as long as the government identifies some
statutory authorization for the Executive’s actions, doing so
makes any challenge to those actions “statutory” and precludes
constitutional review. With that newly minted theory in hand,
the panel recast the grantees’ separation-of-powers claim as an
allegation that the President merely violated the Appropriations
Act and the Impoundment Control Act when he withheld
appropriated funds. The panel then deemed the whole affair a
“fundamentally statutory dispute” that must be dismissed under
Dalton. Maj. Op. 5.

    No other court has ever given Dalton so broad a sweep,
and the panel’s interpretation conflicts with the Ninth Circuit’s
                               2
opinion in Murphy Co. v. Biden, 

 (9th Cir. 2023).
Moreover, the panel opinion is based on a misreading of Dalton
and cannot be reconciled with binding precedents which hold,
in no uncertain terms, that the Executive has no authority to
refuse to execute a duly enacted law — such as the
Appropriations Act — for policy reasons. See In re Aiken
Cnty., 

, 261 n.1 (D.C. Cir. 2013); Kendall v.
United States, 

 (1838).

     In sum, the panel’s Dalton holding is incorrect. Its
reasoning is flawed and inconsistent with binding precedents.
It creates a circuit split and lets the Executive evade
constitutional review by simply invoking statutory authority.
In my view, these are exceptionally important issues that
warrant en banc reconsideration. I therefore respectfully
dissent from the court’s denial of the petition for rehearing en
banc.

                               I.

     The Dalton Court would have been astonished at the
panel’s application of that case to preclude the grantees’
separation-of-powers claim.        Dalton addressed whether
“whenever the President acts in excess of his statutory
authority, he also violates the constitutional separation-of-
powers doctrine.” 

. Its analysis of the
differences between statutory and constitutional claims is
inapplicable to cases where the President invokes his inherent
constitutional authority and does not rely on statutory
authorization at all. Indeed, Dalton specifically distinguished
Youngstown Sheet & Tube Co. v. Sawyer, 

 (1952),
the classic example of the Executive exercising purely
constitutional authority to contravene the will of Congress. See
Dalton, 

. Here, the grantees’ separation-of-
powers claim is just like the one brought in Youngstown: They
                                3
claim that the President relied on his Article II foreign-affairs
powers to refuse to spend an entire category of appropriated
funds — all “United States foreign assistance” — due to a
policy disagreement. Dalton only becomes relevant here
because the panel allowed the government to reframe the
grantees’ argument as a claim that the Executive violated the
Appropriations Act and the Impoundment Control Act. In
setting that precedent, the panel makes it all too easy for the
Executive to evade constitutional scrutiny. In future cases, the
Executive can again recast plaintiffs’ constitutional claims as
statutory, or simply claim to be relying on statutory authority
in addition to constitutional power, to fall under Dalton’s
preclusive rule.

     In any event, the panel opinion’s reading of Dalton is
erroneous: That case did not hold that when a party brings a
valid constitutional claim, that claim is foreclosed if it can also
be characterized as statutory. The Dalton Court merely
observed that not “every action by the President, or by another
executive official, in excess of his statutory authority is ipso
facto in violation of the Constitution.” 

. Stating
that not all ultra vires statutory claims raise constitutional
concerns does not mean that such claims can never be
constitutional. In fact, Dalton expressly recognized an
“exception” that allows private parties to bring constitutional
cases requiring review of the President’s actions, noting that
the Court just did not want the exception to be unduly
“broadened.” 

 at 473–74 (citing Franklin v. Massachusetts,

 (1992)).

    Some claims — like the separation-of-powers argument
brought by the grantees — plainly are constitutional, even
though their facts also might support statutory causes of action.
Dalton does not preclude such claims. Although Dalton does
prohibit parties from transforming fundamentally statutory
                                 4
disputes into constitutional causes of action, the panel in this
case did the opposite: It transformed a fundamentally
constitutional dispute into a statutory one. The grantees
claimed that the President violated the separation of powers by
refusing to spend mandatory congressional appropriations for
foreign aid because that would not align with his policy
preferences. That is unquestionably a bona fide constitutional
claim under Aiken and Kendall, which held that the Executive
has no authority to refuse to execute a duly enacted law for
policy reasons — and those cases emphasized that such
recalcitrance by the President is a problem of constitutional
dimensions. See Aiken, 

 n.1; Kendall, 

. Because the grantees’ claim is constitutional
and therefore not foreclosed by Dalton, we should rehear the
panel’s ruling to the contrary.

                                 II.

     The panel’s Dalton interpretation is an erroneous
constitutional ruling that creates a circuit split on an issue that
is likely to recur. It will unduly restrict private parties from
vindicating their constitutional rights. Although the full court’s
decision not to rehear that issue is a mistake, there are some
silver linings.

     First, the full court’s decision is based, in large part, on the
panel’s revision of its original opinion to provide a pathway for
the grantees in this case to pursue relief under the
Administrative Procedure Act (APA). An immediate remand
for the grantees to litigate claims that the Executive violated
the Appropriations Act under the APA or acted ultra vires vis-
à-vis the Appropriations Act, see Dissent at 28 n.4, may be the
most efficient way for the grantees to seek access to the $15
billion of appropriated funds that are set to expire on September
30. Our denial of en banc review moots the government’s
                               5
pending motion that asks the Supreme Court to stay the district
court’s preliminary injunction pending this court’s completion
of the en banc review process. If we had granted the petition
for rehearing en banc and if the Supreme Court had granted a
stay of the preliminary injunction, there might have been a
significant gap in time with no operative order requiring the
government to obligate the funds in question. But now, with
an immediate remand, the grantees may well secure relief more
quickly by pursuing a new preliminary injunction based on
their APA or ultra vires claims before the district court.

     Second, because the Dalton issue will likely recur, our en
banc court may have another opportunity to correct the panel
opinion’s erroneous reasoning. See, e.g., Nat’l Treasury Emps.
Union v. Vought, No. 25-5091, 

, at *19–20
(D.C. Cir. Aug. 15, 2025) (citing Dalton). Should the Dalton
issue come before us again, we should take the first opportunity
to revisit and correct the mistake that the court has made.
     Statement of Circuit Judge GARCIA respecting the denial
of rehearing en banc: This case involves the Executive
Branch’s effort to unilaterally decline to spend billions of
dollars Congress appropriated for foreign aid funding. The
panel held that the plaintiffs may not bring a constitutional
challenge to that effort. Whether that holding is correct is not
only an important question but also a complex one, as the
panel’s thoughtful opinions indicate. A similar question in a
future case may warrant the Court’s en banc review.
     The panel also originally held that the plaintiffs were
precluded from bringing their challenge under the
Administrative Procedure Act as a statutory claim that the
Executive Branch is violating the Further Consolidated
Appropriations Act of 2024. That holding left the plaintiffs
with no meaningful avenue to test the legality of the Executive
Branch’s unilateral actions. Now, however, the panel has
revised its opinion in a way that allows that claim to
proceed. That claim (and any other remaining claims) may be
litigated expeditiously in the district court. Granting en banc
review of the distinct question whether the plaintiffs’
constitutional claim is viable would serve primarily to delay
resolution of the plaintiffs’ statutory claim.