The ability of federal judges to hold the Trump administration in contempt for defying their orders could be undermined by legislation approved by a House Republican-led committee late Wednesday in a bill that may be impossible for Senate Democrats to filibuster.
Republicans say that the provision is aimed at discouraging frivolous lawsuits. Democrats and the administration’s legal opponents charge that GOP lawmakers are seeking to give President Donald Trump the green light to engage in illegal conduct that had been prohibited by courts.
“Instead of providing support for the judicial branch, this Judiciary Committee bill seeks to strip to strip the courts of their power to hold the administration in contempt when the President violates court orders,” Maryland Rep. Jamie Raskin, the top Democrat on the House Judiciary Committee, said before Wednesday’s vote.
The legislation comes amid a multi-front campaign by Trump and his allies to attack the legal institutions that are serving as a check on his aggressive use of presidential power. That has included smearing judges who have ruled against his policies and issuing executive orders targeting law firms that represent his political foes. The Justice Department has also at times resisted providing courts with information relevant to the disputes before them.
The House proposal would defund the enforcement of contempt orders if the judge had previously not ordered the plaintiffs in the case to put up a security bond with a preliminary injunction or temporary restraining order granted in their favor – essentially making it more expensive to challenge administrative policies.
Notably the language is retroactive, so if it became law, it would hamstring a court’s ability to hold the administration in contempt for defying a court order issued before the bill was enacted if the judge had denied bond.
The Trump administration has already faced the possibility of contempt proceedings for allegedly not complying with an order from Judge James Boasberg that sought to halt the deportation of certain migrants.
Those proceedings have been put on hold by the DC US Circuit Court of Appeals, but if Boasberg is given the okay to restart them and they resulted in a contempt order, there would be no funding available for him to enforce it under the bill.
Judges have several options for punishing defiance of their orders, including with fines and other penalties. Boasberg had taken the extraordinary step of ordering criminal contempt proceedings – which could lead him to appoint a special master to prosecute a finding of contempt if the Justice Department refused to do so.
A spokesperson for House Judiciary Chairman Jim Jordan denied that the bill was about undermining courts’ contempt authority – pointing to court rules that govern the bond requirements the bill seeks to encourage.
“This provision is strictly about stopping frivolous lawsuits by requiring plaintiffs to post a bond prior to filing for a TRO or preliminary injunction as required by Federal Rule of Civil Procedure 65,” the spokesperson, Russell Dye said in a statement.
(The rule requires that courts order bond that would be “proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”)
It comes on the heels of efforts by Trump to make it more costly for his opponents to sue him through bond requirements.
In an executive order earlier this year, Trump directed the Justice Department to seek bond in any case challenging his policies, regardless the circumstances. Those attorneys have done so, often requesting tens of thousands of dollars to be put up by the plaintiffs if they were granted orders in their favor. Judges’ willingness to require bond has varied case by case, with some judges – perhaps trollishly – requiring bond at very low amounts.
Under the legislation, judges would lose their contempt power if they denied bond while issuing court orders against the administration – and without contempt, there would be no mechanism to force an administration to comply with those orders, critics say.
The bond that is being sought by the Justice Department in some of the challenges to Trump’s agenda “is almost unpayable by any plaintiff,” said Robert Weissman, co-president of Public Citizen, which is a public interest group that has spearheaded several major lawsuits against the administration.
“The purpose of this is to prevent judges from enjoining what they found to be illegal behavior,” he said.
Procedural and legal hurdles
There are several more legislative steps before the proposal becomes law as well as procedural and legal hurdles.
It’s unclear whether the provision complies with the Senate rules that limit what lawmakers can pass via the reconciliation process. The Judiciary Committee was voting on a package of provisions Wednesday that would be its offering for the larger House reconciliation bill. But the provision could be stripped out during its journey to the Senate or when it’s in the upper chamber.
There are also questions about its constitutionality and whether Congress unlawfully is stripping an inherent authority of the judiciary, according to Weissman.
The committee voted down an amendment offered by Democrats that would have removed the provision from the larger reconciliation package the committee was considering.
“MAGA Republicans are trying to use this spending bill to keep Americans from using the courts to constrain Trump’s illegal actions,” said Georgia Democratic Rep. Hank Johnson. “They’re saying that, unless you hand over a lot of money when Trump and his administration violate your rights, they can just keep on violating them.”
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