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Retroactive Contempt of Court Protection hidden in the Big Beautiful Bill [1]

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Date: 2025-05-27

There are many things in the "big beautiful bill" that don't have anything to do with the budget. Things like eliminating the $200 excise tax on gun silencers. This is another one hidden in the bill.

One trick the Trump administration tried to slow down federal cases was to request a judge to set a bond amount as a cost of filing a suit, which judges can do, but rarely use.

The provision in the house bill is that judges cannot enforce contempt citations if they had not previously made that bond request.

The Republicans want to make this requirement retroactive. That means that Judge Boasberg could not press forward with contempt of court proceedings for the government ignoring first his verbal order not to send Venezuelans El Salvador, then sending more planeloads to El Salvador after his written order.

Jim Jordan was quite plain about the provision meaning to stop nationwide injunctions by federal courts. "The judge gets to set the security at whatever level he wants. What's typically happened in these cases is he's just waiving it. Nobody's putting it up. And they're getting this injunction that applies nationwide, which is the concern."

There's also Judge Xinis considering contempt of court charges over Kilmar Abrego Garcia's case. And Judge Murphy in Boston who found that the government had violated an order from deporting people to countries other than their own without giving them sufficient time to object.

The provision reads, "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."

The Dean of the Berkeley School of Law, Erwin Chemerinsky wrote, "The Supreme Court has long recognized that the contempt power is integral to the authority of the federal courts. Without the ability to enforce judicial orders, they are rendered mere advisory opinions which parties are free to disregard."

In all the articles about the budget bill provision, they say that it will make it prohibitively expensive for cases to be filed by individuals without financial resources to post the bond.

The government wants to enforce Federal Rule of Civil Procedure 65(c), which mandates that a party seeking an injunction or temporary restraining order must post security to cover potential costs and damages if the injunction is later deemed wrongful. So, can a judge make that bond zero or $1? Such a low amount would be challenged by the government. But can they? Unfortunately, the answer is yes.

On March 11th, Trump issued a memorandum titled "Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c)." It rails about shopping to get a sympathetic judge to issue an injunction. How the taxpayer foots the bill when an injunction or TRO is found invalid. It asks to enforce a rule that is almost never used when the government is the defendant and make the DOJ always to seek it. To start using this rule in all cases goes against history and is an obvious attempt to prevent cases from ever being brought in the first place.

According to the New York Times, 177 rulings have paused or struck down Trump administration actions as of March 23rd. No wonder they want to tip the scales of justice in every way possible. The Just Security Litigation Tracker shows 249 cases in progress against Trump. More are added almost every day as a government out of control seeks to undo the Constitution of the United States.

In Trump's Fact Sheet for the memorandum, he said Rule 65(c) was a way to stop "frivolous lawsuits." If there is anyone who knows how to file a frivolous lawsuit, it's Donald Trump. It's called a SLAPP, Stategic Lawsuit Against Public Participation. He files them all the time to block unfavorable press.

Suppose the cost of a lawsuit is calculated by the Justice Department to be in the millions of dollars, if not billions? That becomes too high a hurdle to present a case and therefore, should be unconstitutional.

Who is the judge of what the cost to the government is? Suppose you were trying to enforce an EPA rule that Lee Zeldin decides he wants to ignore, which he is doing? Does the EPA or a judge determine what the amount is? If you're trying to get back deportees, is the bond the cost of flying the plane there and back and salary for ICE thugs to get them back? It all just turns into a quagmire.

In that Fact Sheet Trump tries to make his case by saying he's perfect:

"President Trump appointed high-performing 'superstar judges' according to a respected study. Trump's judges occupied nine of the top 11 spots in productivity, and nine of the top 11 spots for influence. President Trump's judges are also rated the least partisan."

This has absolutely nothing to do with implementing Rule 65(c). What is completely unfair is that if it is the government or government agencies are bringing the case, they are exempted from the rule.

Erwin Chemerinsky also said the bill "would make the court orders in these cases completely unenforceable. Indeed, the bill is stunning in its scope. It would apply to all temporary restraining orders, preliminary injunctions, and even permanent injunctions ever issued."

Without the power of the courts to issue contempt of court citations, they've lost all power whatsoever. Even retroactively. The Republicans are doing this because they know Trump is losing in court case after court case.

The Democrats, however, are completely aware of the provision in the bill and are actively campaigning against it. It's up to the Senate Republicans now to fix things with a little prodding from the Democrats. There are so many other things in the bill that have no impact on the budget and should be ruled invalid to be in the bill by the Senate parlamentarian. This is one of them. But the House Republicans already ignored their parliamentarian about non-budgetary items in the bill.

Republicans want to make many changes to the bill because it increases the debt so much, and takes away so much from their constituents. Internally, the Republicans want to get the bill passed by July 4th.

This power grab for Donald Trump would mean that no Congress or court could stop Trump, making him king.

The Supreme Court will have to deal with this provision, if passed. Will they take the time to review their presidential immunity decision and save the republic? Will they rule to keep their own power?

We need to start referring to what it really is, which is a Big Ugly Bill.

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