Now is not the time to limit the ability of federal courts to enforce their judicial orders. But in light of dozens of federal courts finding actions by President Donald Trump to be unconstitutional, some House Republicans are trying to do exactly that. A provision in the proposed spending bill would restrict the authority of federal courts to hold government officials in contempt when they violate court orders. Without the contempt power, judicial orders are meaningless and can be ignored.
There is no way to understand this except as a way to keep the Trump administration from being restrained when it violates the Constitution or otherwise breaks the law. The House and the Senate should reject this effort to limit judicial power. Hopefully recent public opinion survey data — showing vast majorities want the Trump administration to stop an action if a federal court ruled it illegal – will guide these legislators to the right outcome. If this anti-democratic legislation is adopted, the courts should declare it unconstitutional as violating separation of powers.
The provision in the proposed budget reconciliation bill states: “No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.”
By its very terms this provision is meant to limit the power of federal courts to use their contempt power. It does so by relying on a relatively rarely used provision of the Rules that govern civil cases in federal court. Rule 65(c) says that judges may issue a preliminary injunction or a temporary restraining order “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
But federal courts understandably rarely require that a bond be posted by those who are restraining unconstitutional federal, state, or local government actions. Those seeking such court orders generally do not have the resources to post a bond, and insisting on it would immunize unconstitutional government conduct from judicial review. It always has been understood that courts can choose to set the bond at zero.
Recent temporary restraining orders and preliminary injunctions illustrate this. For example, federal Chief Judge James Boasberg issued a temporary restraining order preventing individuals from being flown to a maximum security prison in El Salvador without due process—an order that Judge Boasberg found the federal government willfully disregarded. Federal Judge Paula Xinis has issued orders, affirmed by the Supreme Court, to have Kilmar Abrego Garcia brought back from El Salvador, since he was taken there—the one country in the world that an immigration judge ruled he could not be removed to—without due process and, according to a government lawyer, by mistake. Several federal courts, including the Supreme Court, have issued orders preventing the Trump administration from using the Alien Enemy Act of 1798 to deport more people to El Salvador without basic due process safeguards. It would make no sense to require the plaintiffs in these suits to pay bonds to be able to have access to the federal courts.
But the provision in the House bill would make the court orders in these cases completely unenforceable. Indeed, the bill is stunning in its scope. It would apply to all temporary restraining orders, preliminary injunctions, and even permanent injunctions ever issued. By its terms, it applies to court orders “issued prior to, on, or subsequent” to its adoption.
Because federal courts rarely have required plaintiffs to post bonds, it would mean that hundreds and hundreds of court orders – in cases ranging from antitrust to protection of private tax information, to safeguarding the social security administration, to school desegregation to police reform – would be rendered unenforceable. Even when the government had been found to violate the Constitution, nothing could be done to enforce the injunctions against it. In fact, the greatest effect of adopting the provision would be to make countless existing judicial orders unenforceable. If enacted, judges will be able to set the bond at $1 so it can be easily met. But all existing judicial orders where no bond was required would become unenforceable.
This would be a stunning restriction on the power of the federal courts. The Supreme Court has long recognized that the contempt power is integral to the authority of the federal courts. Without the ability to enforce judicial orders, they are rendered mere advisory opinions which parties are free to disregard.
For example, in 1924, the Supreme Court indicated that it would be unconstitutional for Congress to require courts to hold a jury trial before a party could be held in civil contempt for violating a judicial order. The Court stressed that under Article III of the Constitution, a federal court must have the authority to enforce its orders. Congress cannot use it powers to undermine the essential functions of the federal courts.
Of course, the question must be asked, why do Republicans now want to limit the power of the federal courts to enforce orders? The answer seems obvious: it is an effort by the Trump administration to negate one of the few checks that exist on its powers.
This provision should be stripped from the House spending bill. If it remains, the Senate Parliamentarian should rule that this is not about federal spending because it would have no effect on revenues and it thus is not appropriately part of a budget reconciliation bill.
But if it comes for a vote, both Republicans and Democrats should reject it as a terrible idea. Federal courts must be able to hear constitutional challenges to government actions, regardless of who controls the White House, and to provide relief. The federal courts are a crucial protector of the guardrails of our democracy. Now is not the time to greatly weaken their power to enforce the Constitution.
