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A Stark Warning from the Dean of UC Berkeley School of Law, Erwin Chemerinsky [1]

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Date: 2025-05-23

Professor Erwin Chemerinsky has written a newsworthy article in Just Security detailing the ominous implications of a provision in the Republican House Budget Reconciliation Bill that just passed in the lower chamber which will effectively, on a retroactive basis, make court orders against the Trump administration unenforceable. The provision requires a bond (security) to be paid by the plaintiff before enforceable court orders (Temporary Restraining Orders and both Preliminary and Permanent Injunctions) are issued:

Because federal courts rarely have required plaintiffs to post bonds, it would mean that hundreds and hundreds of court orders – in cases ranging from antitrust to protection of private tax information, to safeguarding the social security administration, to school desegregation to police reform – would be rendered unenforceable. Even when the government had been found to violate the Constitution, nothing could be done to enforce the injunctions against it. In fact, the greatest effect of adopting the provision would be to make countless existing judicial orders unenforceable. If enacted, judges will be able to set the bond at $1 so it can be easily met. But all existing judicial orders where no bond was required would become unenforceable. To wit, www.justsecurity.org/...

Currently, the regime has embarked on a broad and merciless assault on our Constitutional rights and the Courts have been the bulwark against a complete transition to fascism, especially in the Due Process/Habeas cases. The Garcia case, the ICE kidnappings and detainment of students cases, and the misuse of the Alien Enemies Act to deport even immigrants with protected status to CECOT are examples where the Courts have stepped in to defend the Constitution and check tyranny despite the regime’s shameful defiance. The House Republicans have slipped this poisonous, non-budget provision into the Reconciliation Bill that is designed to deal with federal spending matters only. Chemerinksy argues that this alone should alert the Senate Parliamentarian to rule it out of place, but we cannot rely on a potential Parliamentary rules decision to save our democracy:

But if it comes for a vote, both Republicans and Democrats should reject it as a terrible idea. Federal courts must be able to hear constitutional challenges to government actions, regardless of who controls the White House, and to provide relief. The federal courts are a crucial protector of the guardrails of our democracy. Now is not the time to greatly weaken their power to enforce the Constitution.

The stakes are too high for complacency. We must urge our Senators to strip this provision (reproduced below) from a Bill which generally stinks in all respects. Note Bene:

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[1] Url: https://www.dailykos.com/stories/2025/5/23/2323953/-A-Stark-Warning-from-the-Dean-of-UC-Berkeley-School-of-Law-Edwin-Chemerinsky?pm_campaign=front_page&pm_source=trending&pm_medium=web

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