Federal judges around the country have blocked the Trump administration’s executive orders, policies, and dictates dozens of times as unlawful and even unconstitutional. Now Republicans are trying to use the massive budget bill, which is currently being overhauled in the Senate, to limit the judiciary’s power to curb presidential abuses.
The bill passed by the House of Representatives last month along party lines included a provision that would limit judges’ ability to hold government officials in contempt for violating court orders. Some Republicans who voted to approve the bill later expressed regret over the contempt provision, and Senate Democrats vowed to fight it.
Draft bill text released last week by the Senate Judiciary Committee shows Republicans in the upper chamber are taking a slightly different approach. Instead of focusing on courts’ contempt power, Senate Republicans revised the provision to limit judges’ authority to issue injunctions and restraining orders against the U.S. government in the first place.
“At a time when the President is violating the Constitution as never before seen in American history, it makes no sense to make it harder for courts to issue injunctions,” said Erwin Chemerinsky, dean of UC Berkeley School of Law, by email. Last month, Chemerinsky decried the House provision as unconstitutional.
“Republicans are targeting nationwide injunctions because they’re beholden to a President who is breaking the law — but the courts are not,” said Josh Sorbe, spokesperson for Sen. Dick Durbin, D-Ill., by email. Durbin, who spoke against the House contempt provision on the Senate floor last weekis the Democratic whip and ranking member on the Senate Judiciary Committee. “Their newfound frustration is ironic, given they cheered and even asked for nationwide injunctions themselves during the Biden Administration.”
“This would preclude many asserting constitutional violations from getting injunctions.”
The Senate version would prohibit judges from blocking the White House via a preliminary injunction or restraining order unless the plaintiffs can put down money as a security bond in case the court order is later reversed as “wrongful.”
Plaintiffs would have to put down “an amount proper to pay the costs and damages sustained by the Federal Government” under the proposed provision, and courts could not consider if the plaintiff — whether an individual challenging their unlawful deportation or a civil liberty group challenging a broader policy — has sufficient funds.
“This would preclude many asserting constitutional violations from getting injunctions,” Chemerinsky wrote.
Chemerinsky noted that the Senate bill was a slight improvement over the House contempt provision, which was retroactive and would have affected an untold number of court cases. The Senate Republicans’ proposal would only apply prospectively and to cases involving the federal government.
But Chemerinsky and other legal scholars across the ideological spectrum warned against restricting courts’ discretion to block executive abuses and tying legal remedies to plaintiffs’ financial means, particularly under the current administration.
“If this provision passes, the government could impose even blatantly illegal and unconstitutional policies for long periods of time, unless and until litigation reaches a final conclusion,” explained George Mason University law professor Ilya Somin. “That could inflict grave harm on the victims of illegality. Consider media subject to illegal censorship during a crucial news cycle, illegally deported immigrants, people imprisoned without due process, and more.”
Like many provisions floated by Republicans, the Senate budget bill’s proposed restriction on federal courts is vulnerable to procedural challenge because of its tenuous link to fiscal matters. Under the so-called Byrd rule, named for the late Sen. Robert Byrd of West Virginia and applied by the Senate’s parliamentarian, Congress cannot use the budget reconciliation mechanism to legislate about matters that are “extraneous” to the budget.
Intext releasedMonday evening, the Senate Finance Committee advanced another budget bill provision with likely Byrd issues, which woulddrastically increasethe maximum fines and prison sentence for those who leak tax return data.
Bobby Kogan, the senior director of federal budget policy at the Center for American Progress who has studied reconciliation and the Byrd rule, told The Intercept that both provisions face long odds under the Senate parliamentarian’s review.
“I would be deeply surprised if this makes it past Byrd,” Kogan wrote in an emailed statement about the draft provision to limit judicial authority.
“I don’t see how this has anything to do with revenue, so it would not be a proper provision in a budget reconciliation bill,” wrote Chemerinsky.
Following passage of the House bill last montha spokesperson for Sen. Chuck Grassley, R-Iowa, who chairs the Senate Judiciary Committee, implicitly conceded there were Byrd rule issues with its contempt provision. Grassley’s office did not respond to questions about how the Senate version fares any better.
Senate Democrats vowed to “work to remove these unnecessary provisions from the Big, Ugly Bill,” as Durbin’s spokesperson put it.
Sen. Alex Padilla, D-Calif., who is also on the Judiciary Committee, also has “serious concerns on the substance of the bill, particularly the provision that strips courts’ power inappropriately, disrupts the separation of powers, and tries to put the administration above the law,” according to an emailed statement from Padilla’s office to The Intercept.
“The Senator strongly believes that the updated bill text released by the Senate Judiciary Committee does not follow the Byrd rule and will get removed,” Padilla’s spokesperson wrote.
