In their budget bill, Republicans show their contempt for
courts
Hidden
deep in the boilerplate? A get-out-of-jail-free card for the Trump White House.
June 5, 2025 at 5:59
p.m. EDTToday at 5:59 p.m. EDT
To find one of the most dangerous efforts by President
Donald Trump and Republican leaders in Congress to trample the power of judges
who stand in their way, you have to dig more than 500 pages into
what they have christened, without embarrassment, the One Big Beautiful Bill.
Just 57 words long, the egregious language is buried in a
section titled “Restriction on Enforcement.” It says no court “may enforce a
contempt citation for failure to comply with an injunction or temporary
restraining order” unless the party bringing the case has posted a monetary
bond, which rarely happens in legal actions brought against the government.
Translated from legalese, it means federal judges would
lose their most potent punishment — penalties that can include steep fines and
even prison time — for those who refuse to follow their orders.
Put another way, it creates an end run around the federal
courts for the Trump White House.
No judge thus far has issued a contempt order. But as cases
work their way through the legal system, it could soon come to that for
officials (though not Trump himself, who has immunity) who continue to defy
their rulings. What’s more, the language before Congress calls for the proposed
restriction on contempt citations to be applied retroactively, meaning in cases
where judges have already ruled against the administration and its many
overreaches.
“If a court cannot enforce its order, then its order
becomes advisory, which in the eyes of the Trump administration, says it means
nothing at all,” Minnesota Attorney General Keith Ellison (D) told me. “It’s
another sign that this president and this party do not believe in
constitutional norms. They’re just done with democracy.”
Opponents of Trump’s more far-reaching executive orders,
including Democratic state attorneys general, have scored a streak of preliminary courtroom
wins. In the president’s first 100 days, according to a tally by the Congressional Research Service,
judges issued more than two dozen temporary restraining orders, blocking the
president on issues that range from immigration to job elimination to denying
federal funding for initiatives and agencies he opposes.
“To get a preliminary injunction, you have to show to a
court that there’s a likelihood of success on the merits,” Oregon Attorney
General Dan Rayfield (D) explained. “That’s a pretty big hurdle, right? The
next thing you have to show is irreparable harm, and the harm has to be
imminent. In a lot of these courts, President Trump or a Republican president
has appointed these judges. It’s like they’ve appointed the referees to the
game, but then they’re complaining about the game.”
In what is surely no coincidence, the language in the
House-passed bill aligns with a March 6 presidential memo directing
agency heads “to request under Federal Rule of Civil Procedure 65(c) that
federal courts require plaintiffs post security equal to the federal
government’s potential costs and damages from a wrongly issued preliminary
injunction or temporary restraining order.” Those costs, it should be noted,
could reach into the billions of dollars — far exceeding the amount that
typical plaintiffs could afford to put up.
Now that the bill has reached the Senate, it will become
subject to a different set of procedural rules. It can pass with a simple
majority as budget “reconciliation,” rather than having to meet the 60-vote
threshold that regular legislation requires to overcome a filibuster — but only
if all of its provisions have a direct impact on the deficit.
Under that standard, the language limiting the ability of
judges to issue contempt citations would appear to be an obvious target for the
Senate parliamentarian to toss out of the bill. But while senators have
traditionally shown deference to the guidance of their nonpartisan
parliamentarian, they broke with that norm last
month when they overturned a waiver that allowed California to set
air-pollution standards that are stricter than the national ones.
All of this hasn’t gotten nearly the attention it deserves,
including by lawmakers themselves. Rep. Mike Flood (R-Nebraska) has said he
would have voted against the bill if he had been aware of what was in it. “This
provision was unknown to me when I voted for that bill,” Flood said at a
town-hall event in his district a week after the bill passed the House. “We
cannot support undermining our court system, and we must allow our federal
courts to operate and issue injunctions.”
Before the vote, more than 20 House Democrats signed a
letter to Speaker Mike Johnson (R-Louisiana) demanding that the provision be
stripped from the bill. “It strikes at the very core of judicial authority that
is granted in our Constitution. This provision would impact hundreds of cases,”
the letter said. “Furthermore, courts could find themselves powerless to hold
administrations — of either party — responsible for breaking the law, even
after they have been found liable.”
They heard nothing back from the speaker.
“There’s so much right now to be upset about in terms of
the lawlessness of this administration, that honestly, there’s so many letters
floating around that people are just getting overwhelmed,” Rep. Laura Friedman
(D-California), who marshaled signatures on
the letter, told me. “Every day, there’s some something else that’s awful going
on.”
And even more, you can be sure, submerged in thousands
of pages of boilerplate legislative language.
