An effort by House Republicans to curb the ability of federal courts to enforce compliance with orders is absent from the Senate version of the party’s megabill.
In its place, Senate leaders added a provision that courts can only issue nationwide orders like injunctions or temporary restraining orders against if the challenger posts a bond.
Senate Judiciary Chair Chuck Grassley (R-Iowa) — who had opposed the House language — said his version would enforce an existing rule that requires courts to impose a bond when parties challenge the government.
Republicans and President Donald Trump have complained for months about courts slowing down his agenda. In March, Trump called for the impeachment of a federal judge who put a halt to some of Trump’s deportation efforts. In April, the Republican-led House passed a bill that would limit nationwide orders.
The Supreme Court is poised to decide on such orders, many of which have involved spending freezes on climate change initiatives and the purging of workers in energy and environmental agencies.
Critics said the new Senate requirement would make it harder — and in some cases impossible — for affected parties to challenge government action. The amount of the bond could be as much as the cost posed to the federal government by the lawsuit.
“Just imagine, for instance, that during Covid, courts could not stop executive orders closing down houses of worship unless millions of dollars were posted in bonds,” Arizona Supreme Court Justice Clint Bolick wrote in a blog post. “Or an executive order confiscating guns.”
Bolick, co-founder of the libertarian Institute for Justice, said the Senate language “could make it all but impossible to obtain a preliminary injunction or restraining order against the government in the first place.”
The discarded House language would have barred courts from using federal money to enforce contempt orders unless the party bringing the case posts a bond. That move prompted critics to point out it could make many federal court rulings issued this year against the Trump administration unenforceable.
Good government groups had criticized the House measure, which would have applied to cases retroactively, as an effort to provide Trump with a free pass. Grassley’s provision would kick in after the enactment of the law.
The House provision was a “brazen attempt to shield President Trump and his administration officials from having to comply with preliminary injunctions or TROs issued by courts that have concluded the administration’s actions are likely illegal or unconstitutional,” Fred Wertheimer, president of the watchdog group Democracy 21, said last month.
He estimated that as many as 165 preliminary rulings against Trump that found he failed to comply with the Constitution or federal law could be affected by the House provision.
Wertheimer noted that federal courts generally waive the requirement that plaintiffs post a bond or set the bond at $0 when a plaintiff applies for a preliminary injunction.
