Trump's sweeping tax-cut bill includes provision to weaken court powers

Reuters

2 days ago

WILMINGTON, Delaware, May 30 (Reuters) - The sweeping tax-and-spending bill that would enact President Donald Trump's policy agenda includes a provision that critics said would weaken the power of U.S. judges to enforce contempt when the government defies court orders.
The one-sentence provision in the 1,100-page bill prevents federal courts, including the Supreme Court, from enforcing contempt orders unless the plaintiffs have posted a monetary bond, which rarely happens in cases against the government.
"No court of the United States may 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 says. It applies retroactively.
"Security" refers to monetary bonds that can be used in private litigation when one party seeks to ask a judge to issue an injunction blocking the actions of another party, such as a company trying to prevent a rival from selling a product. If it turns out the injunction is later reversed, the bond helps cover the defendant's losses.
The provision follows a White House memo in March that directed heads of government agencies to request that plaintiffs post a bond if they are seeking an injunction against an agency policy. The Trump administration said the measure would deter frivolous lawsuits.
The Trump administration and the House Judiciary Committee did not immediately respond to a request for comment. Trump has attacked judges who ruled against his government but he has also said he would obey the Supreme Court.
Judges often don't require bonds in cases against the government. In a case by two small toymakers against the Trump administration tariffs, the plaintiffs said the bond that had been requested by the government would be more costly than tariffs and would nullify the benefit of an injunction. The judge on Thursday set the bond at $100 and blocked the tariffs against the two companies.
Federal courts have been a major check on Trump in his second term, as plaintiffs in dozens of cases have gotten judges to block White House policies. Bonds were not required in the vast majority of those cases, so if the House bill provision became law, judges would be unable to enforce contempt orders.
While no judge has issued a contempt order, several federal judges have said Trump administration officials appeared to be defying court orders and are at risk of being held in contempt.
Judges use contempt to bring a party into compliance, usually by ratcheting up measures from fines to jail. Once the party complies, the penalties cease.
In 2022, when Trump was out of office, he was held in contempt and fined $10,000 by a New York state judge for each day that he failed to produce documents that were subpoenaed in a civil probe of his private business practices that was led by New York's attorney general. Trump eventually complied after paying $110,000.
The House passed the "One Big Beautiful Bill Act" on May 22 by a one-vote margin, without any votes from Democrats. The bill is now heading to the Senate, where Republicans hold a 53-47 vote margin. Several Republicans said they will seek to modify the bill.
Twenty-one Democrats from the House wrote to Speaker Mike Johnson on May 20 and urged him to strike the provision from the bill.
"This provision would neutralize valid injunctions and leave courts powerless to act in the face of open defiance," said the letter.
Eric Kashdan, senior legal counsel with the Campaign Legal Center, said judges could comply with the provision by setting bonds at a nominal amount and old cases could be reopened, but he said it would be time-consuming and burdensome.
"You know what the government is going to do in the meantime? It's free to ignore those orders," said Kashdan, whose organization has sued the Trump administration over a voting policy.