Amid a running separation-of-powers battle between President Donald Trump and the federal courts, Congress is stepping forward with an audacious proposal.
The House of Representatives last week passed a more than 1,000-page budget and spending bill, the Trumpian-titled “One Big Beautiful Bill Act.” Buried in the bill is a paragraph that experts say would neuter, at least in the short term, a key judicial power.
The provision holds that no federal court “may use appropriated funds” to enforce a contempt-of-court citation for failing to comply with an injunction or temporary restraining order “if no security was given when the injunction or order was issued.” In effect, anyone wanting to sue the federal government to stop an action or policy would need to pay a bond for the judge to be able to enforce an order blocking the action or policy from being implemented.
Why We Wrote This
An overlooked provision in the “big, beautiful bill” passed by the House of Representatives would strip the power of the courts to hold the executive branch in contempt, at least for current lawsuits against the Trump administration.
With the U.S. Senate poised to craft its own version, it’s unclear whether the provision will be included in the final bill that is sent to President Trump. If included, it would likely be challenged on constitutional grounds.
For now, it stands as a bold escalation of Mr. Trump’s clashes with the courts. While GOP lawmakers individually supported the president, such as calling to impeach certain federal judges, this provision represents an institutional effort to shift the balance of power away from the courts and toward the presidency.
“What Congress is trying to do here is ease the way for the administration to ignore court orders,” says Jenny Breen, an associate professor at the Syracuse University College of Law. “Our system requires each branch to step up and check the other branch, and this bill just broadcasts that Congress is not interested in doing that for this president.”
Balance-of-power questions
Throughout his second term, Mr. Trump has been testing the fundamental powers of the federal government. With this provision, Congress is continuing the trend.
Mr. Trump has sought to implement his policy agenda through executive orders and presidential memoranda. Compared with legislation passed by Congress, presidential actions are typically easier to implement but more vulnerable to legal challenge.
So it has proved. As of May 27, federal courts have issued almost 180 rulings pausing White House actions they believe are unlawful, according to the New York Times. In some cases, the Trump administration has flirted with defying these orders, exposing the fact that courts have few ways to enforce their rulings. One enforcement tool courts have is contempt of court, which comes with the threat of fines and imprisonment.
The provision would remove that threat unless litigants paid a bond, or security, when they bring a lawsuit asking for an injunction or temporary restraining order. Requiring a bond has fallen out of fashion, says Dr. Breen, because “judges have decided over the years that people shouldn’t have to pay to have constitutional rights enforced.”
Moving forward, it would be easy to sidestep this requirement, scholars say. Judges could set the bond at a nominal amount, like $1. But concerns about the provision focus more on the short-term consequences than the long-term ones. Specifically, in ongoing litigation – where judges haven’t required a bond – it appears that the provision would allow the Trump administration to legally ignore court orders it doesn’t like.
“It’s not a particularly subtle effort just to shut down litigation against the government,” says David Noll, a professor at Rutgers Law School in New Jersey.
“It doesn’t turn Trump into a king permanently, but it has the effect of immunizing, in my view, blatant violations of court orders that have taken place since January,” he adds.
At least one Republican lawmaker admits he hadn’t read the provision before he voted for it. When asked at a May 27 town hall why he voted in favor, Rep. Mike Flood of Nebraska said, “This provision was unknown to me when I voted for the bill.”
“I believe in the rule of law. I’ve taken an oath as an attorney, I’ve taken an oath as a state senator, I’ve taken an oath as a member of Congress, and I support our court system,” Representative Flood told the crowd, amid yelling.
He said that when he found out about the provision, he contacted Senate members to express concern.
Short- and long-term consequences
The provision appears to be targeted at a few specific ongoing cases in which the Trump administration may face contempt charges.
In one case, a federal judge in Washington, D.C., issued a nationwide injunction blocking the government from deporting Venezuelans without trial under the Alien Enemies Act of 1798. The judge has also ordered the government to show why it should not be held in contempt for ignoring his order pausing such deportations in March.
In a second case, a federal judge in Maryland is exploring contempt proceedings against the Trump administration for ignoring her order to “facilitate” the return of a Salvadoran man the government admits it wrongfully deported.
Discussing the provision during a committee meeting last week, GOP Rep. Jim Jordan of Ohio said it’s trying to address “what’s been happening around the country.”
“A case is brought to the judge, they waive the security, and then issue a decision that applies nationwide to all immigrants who are in that situation,” he added.
But enacting the provision could have broader consequences, critics say. In a letter to House Speaker Mike Johnson, a group of Democratic members of Congress wrote that if the provision becomes law, civil rights cases, regulatory cases, and more than 130 school desegregation orders “could become unenforceable.”
For his part, Representative Jordan last week sounded skeptical of those broader consequences. “I can look at the drafting, but my understanding is [the provision] applies to the [immigration] cases we’re talking about,” he said.
