'Hidden' Provision in Trump's Big Bill Could Disarm Courts

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A provision "hidden" in the sweeping budget bill that passed the U.S. House on Thursday seeks to limit the ability of courts—including the U.S. Supreme Court—from enforcing their orders.

"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," the provision in the bill, which is more than 1,000 pages long, says.

The provision "would make most existing injunctions—in antitrust cases, police reform cases, school desegregation cases, and others—unenforceable," Erwin Chemerinsky, the dean of the University of California Berkeley School of Law, told Newsweek. "It serves no purpose but to weaken the power of the federal courts."

Why It Matters
The provision would prohibit courts from enforcing contempt citations for violations of injunctions or temporary restraining orders—the main types of rulings that have been used to rein in President Donald Trump's administration—unless the plaintiffs have paid a bond, something that rarely happens when someone sues the government.

What To Know
If enacted, it would be a "stunning" restriction on the power of federal courts, Chemerinsky wrote in an article for Just Security.

"The Supreme Court has long recognized that the contempt power is integral to the authority of the federal courts," he wrote. "Without the ability to enforce judicial orders, they are rendered mere advisory opinions which parties are free to disregard."

Chemerinsky wrote that federal courts rarely require a bond to be posted by "those who are restraining unconstitutional federal, state, or local government actions" as those seeking such orders "do not have the resources to post a bond, and insisting on it would immunize unconstitutional government conduct from judicial review." Indeed, the bill is stunning in its scope. It would apply to all temporary restraining orders, preliminary injunctions, and even permanent injunctions ever issued."

What People are Saying
Chemerinsky also wrote:”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."

A spokesperson for the House Ways and Means Committee told CNN that the goal is to stop frivolous lawsuits.

Neguse said on X, formerly Twitter, that the provision "basically would attempt to try to stop federal courts or limit the ability of federal courts to enforce contempt orders. Why? Because they know that they are, the Trump administration, losing in virtually every court in the land, and as a result, in their effort, in terms of the campaign that they're waging against the judiciary and the Article Three branch of our government, they've decided that this would be the latest salvo in that effort. It's plainly unconstitutional, but they're going to go forward anyway."

Robert Reich, a former Labor Secretary and a professor of public policy at the University of California Berkeley, wrote in a Substack post that the "hidden" provision "makes Trump King."

He wrote: "No congress and no court could stop him. Even if a future Congress were to try to stop him, it could not do so without the power of the courts to enforce their hearings, investigations, subpoenas, and laws. What can you do? To begin with, call your members of Congress and tell them not to pass Trump's One Big Ugly Bill."

President Donald Trump wrote in Truth Social on Thursday that the bill is "arguably the most significant piece of Legislation that will ever be signed in the History of our Country!"

He added: "Great job by Speaker Mike Johnson, and the House Leadership, and thank you to every Republican who voted YES on this Historic Bill! Now, it's time for our friends in the United States Senate to get to work, and send this Bill to my desk AS SOON AS POSSIBLE!"

What's Next
The House approved the bill in a 215-214 vote early Thursday. It now heads to the Senate, where it could face revisions before a final vote.

Here is info on how to contact US senators. If you live in any U.S. state, please look up your senators and make a phone call and/or send them an email asking them NOT to pass this bill, ESPECIALLY the part that defangs the courts. We NEED to preserve our government's system of checks and balances.

I wrote to both of my senators about the SAVE Act, but only John Cornyn replied. No response from Ted Cruz (not surprised). Why should we think they'll oppose the "big beautiful bill"? They're both all in on Trump's agenda.

The New York Times reports on an ominous provision in the House passed "Big Beautiful Bill" through which Republicans are trying to "weaken federal judges." From the story:

‘The sprawling domestic policy bill Republicans pushed through the House on Thursday would limit the power of federal judges to hold people in contempt, potentially shielding President Trump and members of his administration from the consequences of violating court orders. . . .

The language in the House-passed bill would block federal judges from enforcing their contempt citations if they had not previously ordered a bond, a provision that Republicans said was intended to discourage frivolous lawsuits by requiring a financial stake from those suing. . . .

Democrats have argued that House Republicans' measure would rob courts of their power by stripping away any consequences for officials who ignore judges' rulings. They also noted that the measure would effectively shield the Trump administration from constitutional challenges by making it prohibitively expensive to sue.

"We've never said to American citizens and constituents that in order to vindicate their rights in federal court, they're going to be required to provide a security when their constitutional rights have been violated by their government," Representative Joe Neguse, Democrat of Colorado, said.’

Curious, I looked up the relevant provision in the House-passed bill. It reads:

“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.”

So the issue, then, is what is required by FRCP Rule 65(c). It provides:

“The court 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. The United States, its officers, and its agencies are not required to give security.”

So it would seem that Rule 65(c) already requires security to be given before such orders issue, subject to the judge's discretion as to what constitutes a "proper" amount.

This has become an issue because many judges use this discretion to set the security amount at zero. From the story:

‘The amount is supposed to be set at what "the court considers proper" to cover any costs that might be suffered if that injunction is later found to have been incorrectly issued. But federal judges have wide discretion to set their bonds, and often refrain from doing so.

Samuel L. Bray, a Notre Dame law professor, said many judges do not order injunction bonds in cases where people are seeking to stop government actions that they claim are unconstitutional.

"It doesn't wind up getting used as much as it's supposed to," he said, "and it especially doesn't wind up getting used when people sue the federal government."’

I'll defer to Prof. Bray on this point, but it seems to me that the common practice of waiving any security is contrary to the rule as written. After all, if the rule were intended to give judges the discretion to set the security amount at zero, might it have been drafted to make requiring security at all a matter of judicial discretion? That is, giving judges discretion to set an amount is not the same thing as giving judges the discretion as to whether to require security at all.

In any event, this may all be moot as it is not clear that this provision will survive the Senate. Among other things, it is not clear how this provision is sufficiently budget-related for a reconciliation bill, but we will see.

UPDATE: It's a good thing I said I'd defer to Prof. Bray, as he was ahead of me in flagging this provision, and notes that it does more than I suggest. Indeed, in a post at Divided Argument he suggests the provision is "underinclusive, overinclusive, and likely unconstitutional." Going forward, judges could effectively evade its requirements by setting the security required at $1. But since the provision is also retroactive, it could blow up all sorts of federal court injunctions on the books (as in school desegregation orders or antitrust remedies). And, most significantly, he suggests the provision "is probably unconstitutional as an attempt to interfere with the inherent power of a court of equity to enforce its decrees with contempt." Duly noted.