Latest news with #FederalRuleofCivilProcedure65
Yahoo
6 days ago
- Business
- Yahoo
A Showdown Over The Power Of The Courts Is Headed To The Senate
In the House of Representatives' recently passed One Big Beautiful Bill Act, something ugly lurks beneath the surface. It is a provision — a single paragraph found about halfway through the bill's 1,000-plus pages — that could hamstring judges, reduce access to the courts for the average person and reverse a number of the Trump administration's legal setbacks and defeats. What is the provision, and how likely is it to become a reality? HuffPost breaks down what it all means. Section 70302 of the bill states that 'no court of the United States may use appropriated funds to 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 pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.' In simple terms, this means that judges wouldn't be able to issue contempt orders against defendants who defy the courts unless the person who first sued for an injunction or restraining order had forked over a bond at the very start of their lawsuit. Contempt citations, which occur when a person fails to obey court orders, can carry financial penalties as well as jail time. Bonds are taken to limit financial damages to the person or entity being sued. The Federal Rule of Civil Procedure 65(c) has offered guidance on this point since 1938, telling judges they can only hand down preliminary injunctions or temporary restraining orders if they first issued a bond that was 'proper.' A preliminary injunction stops a party in a legal dispute from taking any further action; a temporary restraining order is similar but it only lasts for a short window of time, usually 10 days. A judge ultimately decides what that 'proper' bond amount should be. Federal courts often do not set bonds at all due to the large disparity in power and resources between the United States and an individual plaintiff, judges often put practicality first when it comes to lawsuits against the federal government and Rule 65 is applied at their discretion: A single person would likely never be able to put up a financial bond big enough to cover the full cost of potential injury the federal government may experience if hit with an injunction. As a result, a judge might set such a bond for a nominal amount, like $1 or even $0. This lowers the hurdle that the public must climb over when contesting the actions of its own government. Importantly, the provision in the bill passed by the House applies retroactively, without any stated time limit. This could mean that injunctions handed down by the courts years ago — like those instructing the government to stop segregating schools, for example, and any other where a bond was not taken — could potentially be undone if a bond was not taken first, Erwin Chemerinsky, dean and distinguished professor of law at Berkeley Law School, recently told HuffPost. The language in the provision is somewhat vague, and it's not clear whether bonds set by a judge at $0 would be swept up, too. The biggest hurdle the provision faces is that it likely doesn't meet the requirements of the Byrd Rule, which prohibits passing a budget bill that includes anything 'extraneous' or not related to fiscal spending. There are six tests senators must use to determine if a provision is 'extraneous,' according to the Congressional Research Service: 1, if the provision does not produce any change in revenue or the amount of funds spent on something; 2, if it produces an increase in the amount of funds spent on something or a decrease in revenue; 3, if it is outside the jurisdiction of the congressional committee that submitted the provision to begin with; 4, if it only changes revenue or spending in a way that is 'merely incidental'; 5, it increases the deficit in a fiscal year beyond what was already covered in a budget bill; and 6, it would amend specific parts of the Social Security Act relevant to old age, survivors and disability insurance. The provision in the tax bill attempts to meet that criteria by saying courts can't use 'appropriated funds to enforce a contempt citation.' Although judges have the power to hold someone in contempt, the related penalties — for example, whether someone gets arrested and is taken to jail — are left up to the U.S. Marshals service, Chemerinsky explained. That agency is housed under the Justice Department, which has its funds appropriated by Congress. Khadijah Silver, the supervising attorney for civil rights at Lawyers for Good Government, told HuffPost the U.S. Marshals Service 'connection is incredibly thin.' 'The Byrd Rule requires budget reconciliation measures to have a direct fiscal impact, and this is fundamentally about restricting judicial power, not spending,' Silver said. 'More importantly, as the Supreme Court established nearly a century ago in Michelson v. United States, Congress cannot undermine the essential functions of federal courts. The contempt power is integral to judicial authority under Article III — without it, court orders become meaningless suggestions that the executive branch can ignore at will.' At least one Republican senator demurred when asked whether the provision was likely to make it to the final bill. During a town hall in Iowa on Friday, Sen. Joni Ernst (R-Iowa) told attendees that every provision in the 1,100-page bill would go through a review process before it came up for a vote — and said Republicans in the chamber wouldn't be making the final call. 'We're not the ones who make those decisions, folks. If you follow Senate procedures, it's nonpartisan parliamentarians who make that decision. … And they are very strict about this as well. I don't think any argument that could ever be made that this [provision] impacts mandatory spending or revenues — I just don't see it getting into the Senate bill,' Ernst said. The current Senate parliamentarian is Elizabeth MacDonough, who was appointed to the role by then-Senate Majority Leader Harry Reid, a Democrat, in 2012. But what Ernst failed to mention was that senators could vote to overrule MacDonough if she were to suggest tossing the provision — and that a simple majority is all that is needed to do so when it comes to budget bills. Republicans hold the majority in the Senate. If the provision were passed, it would have the potential to unwind injunctions or restraining orders that judges have already set against the Trump administration as the president has pushed through executive orders attempting to dismantle the federal government or target groups he perceives as a threat to his administration's agenda, from people born to immigrant parents to law firms he claims are weaponized against him, to trans people serving in the U.S. military. Judges in the nation's lower courts have ruled against the administration 96% of the time so far, according to an analysis by political science professor Adam Bonica of Stanford University. Many cases where an injunction was issued could be in jeopardy if the provision is left intact, and the threat of a judge issuing future contempt citations against the administration evaporates as well. There is little question the provision would 'embolden government excesses and hobble judges' ability to enforce their rulings,' Silver said. 'This is most problematic in cases where the injunction is based on the government's breach of the Constitution,' they said. 'It forces private actors who have been harmed and are being harmed to pay for the privilege of having those harms brought before the court.' In short, it's now up to the Senate whether the judicial system will change drastically and quickly. 'This provision would render hundreds of existing court orders unenforceable overnight. We're talking about everything from school desegregation orders to police reform mandates to protection of immigrants' due process rights,' Silver said. 'It would create a 'catch me if you can' system where the government could violate the Constitution faster than courts could stop them. This isn't about fiscal responsibility — it's about neutering the last meaningful check on executive power when it tramples our constitutional rights.' House Passes Trump's Tax And Spending Cuts The Long Shadow Of Bill Clinton Over The 'One Big Beautiful Bill' Trump's 'Big Beautiful Bill' Faces Uphill Battle In The Senate
Yahoo
27-05-2025
- Business
- Yahoo
Trump's budget would make it harder for US courts to enforce contempt charges against government
After months of work on Trump's spending bill, House Republicans passed the legislative package — titled the "One Big Beautiful Bill Act" — on May 22, 2025. The next day, claims that the budget included a provision that, if the bill were to pass in the Senate, would legally eliminate U.S. courts' ability to enforce contempt charges against government officials began to spread across multiple platforms (archived, archived, archived, archived). One post (archived) on Facebook that users shared more than 31,000 times, as of this writing, claimed: A small addition to the budget bill House GOPers are pushing upends the traditional balance of power by forbidding courts to charge Trump and other government officials with contempt for defying court orders. The bill also blocks court-ordered national injunctions to prevent potential illegal acts posing imminent harm. With the SCOTUS ruling giving Trump immunity, this small part of the bill completes his quest to become America's first dictator. The section of the budget these posts reference does exist. However, the posts fail to capture certain nuances in the potential impacts of the provision. In reality, the provision will likely not "forbid" courts from charging Trump and other government officials with contempt for defying court orders, but it would make it more difficult for them to do so. Buried in the bill on Page 544 of the budget, the provision reads: SEC. 70302. RESTRICTION ON ENFORCEMENT. 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 pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section. While the provision does not necessarily corroborate the claim in its entirety, it would significantly limit courts' ability to check executive power. Most recently, the Trump administration has dismissed judges' orders in several deportation cases, including an order to return Kilmar Abrego Garcia, the Maryland man the administration mistakenly deported to El Salvador in March 2025. Jeff Feldman, a professor at the University of Washington School of Law, wrote via email: "That language, on its face, would not eliminate the court's ability to enforce contempt charges against the government. It would make it much more difficult, though." He also noted that he had not reviewed the entirety of the legislation (which is more than 1,000 pages long), and there could be language or other provisions within the bill that impact the meaning or provide context for the language of the provision in question. Feldman elaborated: While the language in the bill does not eliminate the court's ability to enforce contempt charges against the government, by conditioning contempt power on the requirement that security have been posted, the language makes it much more difficult to obtain an enforceable injunction and, likewise, makes it much less likely that a government agency or individual will be found to be in contempt for failing to comply with the terms of an injunction. In other words, according to the language in the bill, if the government fails to comply with an injunction — a court order requiring a person to do or cease doing a specific action — U.S. courts (including the U.S. Supreme Court) do not have the right to enforce a contempt citation — the consequence for an act of disobedience or disrespect toward the judicial branch — unless the plaintiffs have paid security (most commonly a bond). Without paying a bond, plaintiffs would not have access to federal courts. These rules are already in place for non-government plaintiffs according to Federal Rule of Civil Procedure 65(c), which reads, "The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained," but also notes, "The United States, its officers, and its agencies are not required to give security." There are several reasons the budget bill's provision would make it difficult, and in many cases impossible, for courts to obtain an injunction, according to Feldman: First, the government is not a private business or individual who could suffer economically if issued an injunction; this is the purpose of plaintiffs providing security. Injunctions do not pose the same risk to government agencies or individuals and the government will not "go out of business" as a result of an injunction. Second, because the government is not a business or individual, it would be very difficult for courts to determine the amount of required security. Lastly, individuals and groups suing the government do not have access to the kind of money that the government is likely to argue is necessary to protect the government during the injunction period, nor would individuals or groups likely have access to the substantial assets required to obtain a bond as security. Democratic members of Congress argue the provision is not budget-related and therefore unlikely to make it past the Senate's "Byrd Rule," which is a guideline in place to keep nonfiscal matters out of budget proposals. Defiance toward federal courts is also highly unpopular with the American public. A recent Pew Research poll found that nearly 78% of Americans say "the administration has to follow the court's ruling and stop its action" if a federal court rules that an action by the Trump administration is illegal. In sum, the provision social media posts referenced in regard to balance of power between the Trump administration and federal courts is a real part of the "One Big Beautiful Bill Act," although it does not explicitly say it would "forbid" courts to charge Trump and other government officials with contempt for defying court orders. The bill would, however, make the process more difficult because the provision would require plaintiffs to post an undetermined amount of money for a U.S. court to enforce a contempt citation, while the U.S. government has access to offensive and defensive resources otherwise unavailable to the general public. Beshay. 'Views of How the Trump Administration Governs'. Pew Research Center, 23 Apr. 2025, 'Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c)'. The White House, 11 Mar. 2025, '"Hidden" Provision in Trump's Big Bill Could Disarm US Supreme Court'. Newsweek, 22 May 2025, 'Injunction'. LII / Legal Information Institute, Accessed 27 May 2025. Justice Manual | 752. General Definition of Contempt | United States Department of Justice. 19 Feb. 2015, Musgrave, Shawn. 'GOP Budget Would Make It Even Harder to Hold Trump Administration in Contempt'. The Intercept, 24 May 2025, News, A. B. C. 'Trump's Clash with the Courts Raises Prospect of Showdown over Separation of Powers'. ABC News, Accessed 27 May 2025. '"One Big Beautiful Bill Act"'. 'Rule 65. Injunctions and Restraining Orders'. LII / Legal Information Institute, Accessed 27 May 2025. 'Trump's Big Tax Bill Has Passed the House. Here's What's inside It'. AP News, 22 May 2025,
Yahoo
27-05-2025
- Business
- Yahoo
The GOP's ‘Big Beautiful Bill' has an ugly way of protecting Trump
In his farewell address to the nation more than 200 years ago, President George Washington warned the branches of government to 'confine themselves within their respective Constitutional spheres.' Encroachment on other branches, he wrote, 'tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.' Today's Republican Party never heard that advice. GOP majorities in the House and Senate have stood by as President Donald Trump has brazenly usurped congressional authority and evaded court rulings. But apparently that is not enough for them demonstrate their fealty to such a despotic executive. Now, the House GOP caucus is using the recently passed One Big Beautiful Bill Act to try to further insulate the president from judicial accountability. Republicans snuck in a little noticed but very important provision into the megabill that would effectively remove from judges the ability to hold litigants who defy court orders in contempt. If the provision becomes law, it would be an unmitigated disaster for the Constitution and the country. At the end of page 562 of the 1,118-page bill, a brief section entitled 'Restriction on Enforcement' says: 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 pursuant to Federal Rule of Civil Procedure 65(c) whether issued prior to, on, or subsequent to the date of enactment of this section.' Rule 65(c) says judges may only issue preliminary injunctions or temporary restraining orders if litigants provide a security bond 'in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.' Judges have wide discretion on that amount, and, as The Intercept's Shawn Musgrave notes, the rule requiring such a financial guarantee is 'generally relaxed when the lawsuit alleges illegal conduct by the government.' But no more, if House Republicans get their way. Under this provision, anyone seeking an injunction or restraining order would have to put up a financial bond, in an amount determined by the judge in the case, if the litigants wanted to keep alive that judge's contempt power. As Erwin Chemerinsky, dean of UC Berkeley School of Law, writes,'Those seeking such court orders generally do not have the resources to post a bond, and insisting on it would immunize unconstitutional government conduct from judicial review.' Whether the provision survives the Senate is unclear. The megabill is being passed under the budget reconciliation process, which is supposed to be used only for fiscal matters. A change to the rules around contempt would appear to be disqualified under that process, but already Senate Republicans have shown willingness to play fast and loose with the chamber's procedures. If it does survive, the provision will go a long way toward neutering the courts and do more to insulate Trump from accountability than anything since the Supreme Court's scandalous decision all but eliminating the president's criminal liability. This provision was clearly written with the current administration in mind. Note its seemingly odd application only to injunctions and restraining orders rather than to any use of the contempt power. And recall the number of times since Jan. 20 that courts have issued them to stop the administration from violating the law. If that wasn't enough to signal the way this provision would help the president, consider the part that would apply it to every order entered 'prior to' its enactment — all temporary restraining orders, preliminary injunctions and permanent injunctions. Conveniently, in none of the cases previously filed against the Trump administration has the security or the bonding requirement been fulfilled. Retroactive application of a newly enacted law is always problematic, and especially so in this instance. If this provision of the One Big Beautiful Bill Act becomes law, the judicial branch, which so far has done almost all the work of checking the administration will have an even harder time doing so. Without the power to hold parties in contempt, a restraining order or injunction issued is more a request than a command. Administration officials must be salivating. They know that contempt is a crucial weapon in the arsenal of any judge. It is used most often when one of the parties to a lawsuit or their attorneys disrupts court proceedings or disrespects the judge — what is known as 'direct contempt.' In such cases, the judge can hold someone in contempt without any kind of hearing. Indirect contempt, on the other hand, occurs when a party ordered by the court to do, or refrain from doing, something fails to follow the court order. That is at issue in several high-profile cases, including the wrongful deportation of Kilmar Abrego Garcia. The contempt power traces its origins to 14th-century England. In the Judiciary Act of 1789, Congress gave American courts the authority 'to punish by fine or imprisonment ... all contempts of authority in any cause or hearing before the same.' In 1873, the Supreme Court said, 'The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.' 'The moment the courts of the United States,' the high court argued, 'were called into existence and invested with jurisdiction over any subject, they became possessed of this power.' In 1924, the Court reaffirmed this view. Justice George Sutherland, in his majority opinion, explained, 'The power to punish for contempts is inherent in all courts has been many times decided, and may be regarded as settled law. It is essential to the administration of justice.' At that time, the court acknowledged Congress' right to make rules regarding the contempt power. But, as Sutherland noted, 'the attributes which inhere in that power and are inseparable from it can neither be abrogated nor rendered practically inoperative.' House Republicans' version of the One Big Beautiful Bill Act would render the contempt power 'practically inoperative,' expressing the same cavalier attitude toward the judicial branch as the current president. In light of the provision's dubious constitutional foundation, the first response to the GOP's effort should be political, not legal. Now would be a good time for Republicans in the Senate who call themselves 'constitutionalists' to stand up and be counted. Or, failing that, for Americans to shame them into doing so. This article was originally published on
Yahoo
07-03-2025
- Politics
- Yahoo
White House Wants To Make People Pay To Sue Them In Emergency Cases
The White House issued a memo Thursday urging various agency heads to begin applying regular use of a rule that would make those who want to sue the government in an emergency lawsuit pay up front. The memo was released just a day after a federal judge ruled that President Donald Trump's bid to freeze federal grants sidestepped Congress — and after a raft of lawsuits was filed against the Trump administration during its first weeks back in power. The rule, known as Federal Rule of Civil Procedure 65(c), is one that is already on the books, though it is rarely enforced. It gives courts the power to issue a preliminary injunction or a temporary restraining order only if the person suing for that order pays 'security' up front. The Trump memo urged government lawyers to ask judges to invoke this rule, though of course the judges could refuse. The judges are also responsible for setting the security amount — so they could set it at $0, or it could be much higher. The White House did not immediately respond to a request for comment Friday on whether regular enforcement of this rule may create a chilling effect for parties who have limited funds to sue. Lisa Gilbert, president of Public Citizen, a consumer advocacy group, said in a statement Thursday: 'The administration's memorandum is an attempt to scare people away from enforcing their rights through the court system, as Donald Trump and Elon Musk work to dismantle the federal government. People should not be deterred from challenging the administration's unlawful lawlessness.' According to the White House memo, which highlights an intent to stop 'judicial overreach and frivolous lawsuits,' the procedural rule falls in line with a 'demand that parties seeking injunctions against the federal government must cover the costs and damages incurred if the government is ultimately found to have been wrongfully enjoined or restrained.' Many people have sued the administration since Trump took office, seeking injunctions or temporary restraining orders meant to temper, slow or altogether stop the president's barrage of executive orders and memorandums currently testing the limits of executive power. Whether it's humanitarian groups trying to unlock frozen aid, government workers fired by Elon Musk's so-called Department of Government Efficiency, immigrants seeking to stop forced deportation to Guantánamo Bay, or transgender members of the U.S. military challenging the administration's ban on their service, the tide of litigation has been unceasing. So far, the administration has already been dealt one key defeat by the Supreme Court. Thursday's memo urging renewed enforcement of the procedural rule came just days after the high court ruled 5-4 that the administration must comply with a lower court's order demanding the government release the funds it froze at the U.S. Agency for International Development more than a month ago. In fact, just a few hours before the White House published its memo Thursday, the lower court judge tasked with the USAID case had ruled that the nearly $2 billion in aid and debt that has been frozen must start being paid out by Monday. 'Activist groups file meritless suits for fundraising and political gain, facing no consequences when they lose, while taxpayers bear the costs and delays,' the White House memo claims, adding that the Justice Department is 'forced to divert resources from public safety to fight the frivolous cases, weakening effective governance.' The memo on Thursday also came as Trump signed an executive order targeting Perkins Coie, a law firm that worked with prominent Democrats in the 2016 election. The order, which appeared retaliatory, stripped the law firm of its government security clearances and contracts and restricted the firm's access to government buildings. Trump did the same with the law firm Covington & Burling last month. That firm did pro bono work for former special counsel Jack Smith. Trump Tries To Spin His 'Thank You' To Chief Justice John Roberts Judge Orders Trump Administration To Pay Nearly $2 Billion In USAID And State Dept. Debts 'The Executive Put Itself Above Congress': Trump's Funding Freeze Blocked By Judge
Fox News
06-03-2025
- Politics
- Fox News
Trump wants 'activist' groups that sue the government to put up money if they lose
FIRST ON FOX: President Donald Trump signed a memo Thursday directing government agency heads to ask federal judges to require financial guarantees to hold "activist" groups that sue the government financially responsible if an injunction is found to be unnecessary. The memo comes as the Trump administration faces more than 90 lawsuits stemming from executive orders, memos and executive proclamations issued since Jan. 20 that legal groups, labor organizations, and other state and local plaintiffs are challenging. Specifically, the memo instructs federal agencies to coordinate with Attorney General Pam Bondi to request federal courts adhere to a rule that mandates financial guarantees from those requesting injunctions. While federal judges ultimately have the final say on whether these financial guarantees are required, the Department of Justice can request under Federal Rule of Civil Procedure 65(c) that judges implement the rule to require financial guarantees from plaintiffs that are equal to the potential costs and damages the federal government would incur from a wrongly issued preliminary injunction or temporary restraining order. The memo signed Thursday applies to all lawsuits seeking preliminary injunctions or temporary restraining orders "where the government can demonstrate monetary harm from the requested relief," according to a White House fact sheet. "Agencies must justify security amounts based on reasoned assessments of harm, ensuring courts deny or dissolve injunctions if plaintiffs fail to pay up, absent good cause," the White House said in the fact sheet obtained by Fox News Digital. As a result, the White House said the order will rule in "activist judges" and keep "litigants accountable." "Unelected district judges have issued sweeping injunctions beyond their authority, inserting themselves into executive policymaking and stalling policies voters supported," the White House said in its fact sheet. The lawsuits challenging the Trump administration already have started to make their way up to the Supreme Court. For example, the high court issued a 5-4 ruling Wednesday upholding a district judge's order requiring the Trump administration to pay almost $2 billion in foreign aid money. The Supreme Court said that since the district court's Feb. 26 deadline for the Trump administration to pay the USAID funding contracts has expired it directed the case back to the lower court to hash out future payment plans. "Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines," the Court said.
