Republican Bill Would Limit Judges' Contempt Power
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.
Republicans tucked the provision into the tax and spending cut bill at a time when they have moved aggressively to curb the power of federal courts to issue injunctions blocking Mr. Trump's executive actions. It comes as federal judges have opened inquiries about whether to hold the Trump administration in contempt for violating their orders in cases related to its aggressive deportation efforts.
It is not clear whether the provision can survive under special procedures Republicans are using to push the legislation through Congress on a simple majority vote. Such bills must comply with strict rules that require that all of their components have a direct effect on federal revenues.
But by including it, Republicans were seeking to use their major policy bill to weaken federal judges. Under the rules that govern civil lawsuits in the federal courts, federal judges are supposed to order a bond from a person seeking a temporary restraining order or a preliminary injunction.
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.'
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.
Representative Jim Jordan, the Ohio Republican who chairs the Judiciary Committee, said the provision was also meant to target cases involving nationwide injunctions.
'The judge can set the security at whatever level he wants,' Mr. Jordan said at a hearing on Wednesday. 'What's typically happened in these cases is he's just waving it. Nobody's putting it up. And they're getting this injunction that applies nationwide, which is the concern.'
The provision would apply retroactively to court orders that were made before it was enacted, including ongoing cases where federal judges are weighing whether to hold Trump administration officials in contempt over deporting immigrants.
Judge James A. Boasberg, a veteran judge in Washington, has threatened to open contempt proceedings over whether the administration violated an order he issued stopping flights deporting Venezuelan migrants to El Salvador.
In Maryland, Judge Paula Xinis said she would consider contempt charges as she investigated whether the White House violated the Supreme Court's ruling to 'facilitate' the release of a wrongly deported Maryland man, Kilmar Armando Abrego Garcia, from a Salvadoran prison.
And on Wednesday, a federal judge in Boston raised the possibility of contempt charges against Trump administration officials after he found that they had violated an order that blocked the government from deporting people to countries that were not their own without giving them sufficient time to object.
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.
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