Republicans Attempt to Protect the Trump Administration from Contempt Rulings

I think that most of us know that the reconciliation bill recently passed by the U.S. House of Representatives has a significant number of bad provisions. The bill contains massive tax cuts for the wealthy, which will add trillions of dollars to the national debt. It cuts Medicare and Medicaid and weakens Obamacare. The bill also increases funding for the military and the border patrol. But a must-pass bill of more than 1,000 pages, much of which was drafted in the final hours before passage and approved in the middle of the night with few Members of Congress having been able to read it, is ripe for exploitation. Such a bill is a prime candidate to be used for hiding provisions that may be unpopular and which would never pass on their own accord. The "Big Beautiful Bill", as the reconciliation act is named, is just such legislation, and exactly that has happened with it. Hidden away amidst the pages about tax cuts and defense spending increases is a provision that would protect government officials from the consequences of ignoring court decisions.

A week ago I wrote about the constitutional crises being faced by both the United States and Israel. At the tail end of that post, I mentioned a measure that "prevents courts from sanctioning government officials for contempt." I think that it is worth delving into that provision further. The best coverage of this provision that I have come across was provided by Joseph Fawbush at FindLaw.com. Frankly, Fawbush leaves very little more to be said, and I am going to be cribbing heavily from him. Just as Fawbush did, I am going to cite the provision and then explain it in terms that even a layperson such as myself can understand.

This is what Section 70302, titled "Restriction on Enforcement", says:

"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."

This section should be read in the context of recent court rulings related to actions by the administration of cult leader, convicted felon, and failed President Donald Trump. A large number of these actions have been challenged in court, and in many cases, courts have issued injunctions or temporary restraining orders. In theory, the rulings should have halted the administration's actions. In reality, the Trump administration has been ignoring them. To enforce their orders, judges have the authority to find government officials in contempt and punish them with either fines or jail time.

Currently, Trump officials face potential contempt sanctions in two cases. One involves the men sent to the CECOT prison in El Salvador. On the day that the first planes flew to El Salvador, Judge James Boasberg was holding a hearing regarding whether such removals were constitutional. During the hearing, Boasberg issued an order from the bench stopping the removals. The government ignored his order — arguing that since it was verbal and not written, it was not yet official. By the time the written order was delivered, the government contended, the aircraft were in international airspace and outside Boasberg's authority. Boasberg did not accept the government's arguments and found the government to be in contempt. The second case was somewhat related. One of the men on those flights was Kilmar Abrego Garcia, a migrant from El Salvador for whom a "do not remove" order had been issued. After he was sent to El Salvador, the government admitted that this had been an error. Judge Paula Xinis ordered the government to return Abrego Garcia, a decision that was appealed to the Supreme Court. The Supreme Court, in a 9-0 ruling, ordered that the government "facilitate" Abrego Garcia's return to the United States. To date, the government has not demonstrated that it has taken any actions to comply with this decision. Therefore, Xinis is currently overseeing a discovery process to determine whether the government is in contempt.

Obviously, a government that is willing to ignore court orders is also willing to ignore toothless findings of contempt. The only method of enforcement available to courts is the threat of punishment for those found to be in contempt. Section 70302 prohibits enforcement of contempt citations if the injunction or TRO was not accompanied by a security bond. At times, courts require those seeking an injunction or TRO to provide a bond that will compensate the defendant for losses if the defendant ultimately wins the case. However, such bonds are generally not required for those suing the government in cases dealing with constitutional rights. As such, this section removes the teeth from contempt findings. Going forward, courts could require a nominal security of, for example, $1. That would mitigate this provision in future cases. However, Section 70302 also applies to contempt rulings "issued prior" to the enactment of the legislation. That means that Boasberg, for example, would not be able to enforce his contempt finding.

There is a chance that this language will not become law. As I noted above, the provision was buried among more than 1,000 pages that were literally passed in the dark of night. When constituents of Republican Member of Congress Mike Flood of Nebraska confronted him at a town hall about the provision, he admitted that he had not known about it when he voted in favor of the Big Beautiful Bill. He now says that he opposes the provision. The Senate still needs to approve the act and will likely make changes. Flood said that he is talking to Senators about removing the section. Furthermore, the strict rules governing reconciliation measures may provide technical reasons that the provision cannot be included. But given the Senate's recent willingness to change rules when it benefits Republicans and the Senate's self-imposed subservience to Trump, there is a threat that this language will pass.

Erwin Chemerinsky of Just Security may have been one of the first to notice Section 70302. I am going to conclude with a question and answer that he provided: "Of course, the question must be asked: why do Republicans now want to limit the power of the federal courts to enforce orders? The answer seems obvious: it is an effort by the Trump administration to negate one of the few checks that exist on its powers."