Trump's massive tax-cut bill could shield the president from court orders

San Francisco Chronicle​

6 hours ago

A provision in President Donald Trump 's massive tax-cut bill that would shield Trump from some court orders is drawing Democratic opposition as it heads for the Senate. But a leading Republican says the court restriction is necessary to keep judges from abusing their authority.
The provision drew little attention in the marathon debate that ended with a 215-214 House vote to approve the measure in the early-morning hours of May 22. But it would make a significant change in the standards for injunctions, the orders judges issue to prohibit a person, business or government agency from taking actions the judge has found to be illegal.
Under the proposal, a judge could find a violator in contempt of court, and issue penalties, only if the judge who issued the order required those who sought it to post a bond that would reimburse the other side for its costs if the injunction was later found to be unjustified.
And the new rule would apply not only to future injunctions, but also to those issued in the past, when judges have rarely required bonds. No bonds were ordered, for example, by judges who prohibited Trump from sending immigrants to a prison in El Salvador — injunctions that would become unenforceable under the legislation passed by the House.
And it could even cast doubt on decades-old court orders to limit police practices or desegregate schools, said Erwin Chemerinsky, the UC Berkeley law school dean whose online posting called attention to the bill's language.
While the debate has centered on the bill's reductions in taxes for the rich and health care for the poor, some Democrats are starting to voice opposition to the injunction limits.
'Republicans are once again seeking to twist the rules to avoid accountability and advance their overtly political interests by attempting to shut down federal courts' enforcement mechanism,' Sen. Alex Padilla, D-Calif., said after the House approved the measure. 'The Constitution outlines the Judicial Branch as an independent, co-equal branch of government, and I will do everything in my power both to ensure it remains that way and to shut down Republicans' attempts to further insulate Donald Trump from our system of checks and balances.'
'You have activist judges, a handful of them around the country who are abusing that power,' Johnson told a reporter last weekend. 'They're issuing these nationwide injunctions. They're engaging in political acts from the bench. And that is not what our system is intended for. And people have lost their faith in our system of justice.'
His language was in line with Trump's responses to judges who rule against him, whom the president has labeled 'radical left lunatics' who should be impeached.
One was U.S. District Judge James Boasberg of Washington, D.C., who ordered Trump in March to halt the deportations of more than 200 Venezuelans to El Salvador and turn the flights around, orders the Trump administration has ignored. Boasberg was initially appointed to the bench by Republican President George W. Bush, and promoted later by Democrat Barack Obama.
The tax-cut legislation, however, does not address individual judges' authority to issue nationwide injunctions, an issue the Supreme Court is now considering in the Trump administration's challenge to birthright citizenship for U.S.-born children of undocumented immigrants. The language in the bill would instead invalidate standard injunctions issued against one person, including the president, or a business or organization accused of violating the law.
The bill 'has nothing to do with nationwide injunctions,' Chemerinsky said. 'The ability of the courts to review presidential actions was articulated in Marbury v. Madison,' an 1803 Supreme Court ruling, 'and was not something new created for the Trump administration,' he said.
As budget-related legislation, the bill is exempt from filibusters and could be passed by a majority vote in the Senate, where Republicans hold 53 of the 100 seats. But Chemerinsky said that if the restrictions on injunctions remain in the measure, the Senate's nonpartisan parliamentarian, Elizabeth MacDonough, could determine they were unrelated to taxing or spending and could be blocked by a filibuster, which would require 60 votes to overcome.
And a House Republican who voted for the bill last week predicted Friday that the injunction limits would be dropped from the legislation.
'I don't see any argument that could ever be made that this affects mandatory spending or revenue,' Rep. Joni Ernst, R-Iowa, said at a town-hall meeting. 'I don't see it getting into the Senate bill.'
Chronicle reporter Shira Stein contributed to this article.