The GOP’s Chaotic Bid to Defang the Courts

Republicans are considering a new judicial requirement that would let Trump skirt court orders for a short time — for the small price of nationwide legal pandemonium.

The multitrillion-dollar reconciliation bill the House GOP passed Thursday includes a provision that would, if it becomes law, curtail when courts can force parties to comply with their orders.

“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,” the provision reads.

The measure would require that judges collect a bond from all parties seeking a temporary restraining order or a preliminary injunction, otherwise the resulting orders will be unenforceable.

Currently, judges have the ability to issue injunctive bonds to protect the target of the court’s order from potential harm if the order is later found to have been wrongfully issued. But they often don’t require such bonds in lawsuits against the government, as plaintiffs may have limited resources and the government likely won’t be substantially injured by orders.

On its face, the change appears quite small. But as Erwin Chemerinsky, dean of the UC Berkeley School of Law, recently noted, the provision would render hundreds and hundreds of other court orders in cases unrelated to Trump unenforceable. 

These would include orders in cases dealing with extremely sensitive issues like school desegregation, police reform and voting rights. 

While it would temporarily make some court orders against Trump unenforceable, judges presiding over Trump-related lawsuits would still have the discretion to significantly minimize the bond amount — potentially to just $1 — when reissuing orders.

During a debate on the reconciliation bill Wednesday, Rep. Jim Jordan (R-Ohio), the ranking member of the House Judiciary Committee, appeared to not fully grasp what exactly the provision would do. When asked about it, Jordan said it only applies to nationwide injunctions in immigration cases. 

After Rep. Joe Neguse (D-CO) noted that the provision does not contain the words “immigration” or “nationwide,” Jordan briefly consulted lawyers before saying that Republicans may have to “look at the language.”

“It’s 6 a.m. You’re voting on this thing in like 10 hours. What are we talking about?” Neguse said.