At 6:56 a.m. on Thursday, a razor-thin majority of the U.S. House of Representatives voted to pass a sweeping budget bill that would impose draconian cuts to critical public services, allocate billions of dollars to executing President Donald Trump’s anti-immigrant agenda, and gift $1.5 trillion in tax breaks to the wealthiest people in the country. The bill now moves to the Senate, where it will only need a simple majority to pass.
The most prominent victims of House Republicans’ budget are Medicaid and the Supplemental Nutrition Assistance Program: The programs would lose a combined $965 billion in federal funds over the next decade and cause a staggering number of Americans—including over 10 million children—to lose their health insurance, go hungry, or both. But the bill is full of other, smaller loathsome treats for Republicans, including a provision that aims to shield the Trump administration from accountability for its lawbreaking by stripping courts of funds to enforce their orders. And without enforcement, court orders are little more than suggestions for Trump to ignore.
In March, Trump issued an executive order in which he claimed that “activist organizations” were “undermining the democratic process” by obtaining court injunctions that blocked the administration’s policies, and called for stronger enforcement of Federal Rule of Civil Procedure 65(c). Under Rule 65(c), plaintiffs seeking a preliminary injunction or temporary restraining order have to “give security,” which is sort of like posting bond: For a case to move forward, plaintiffs would have to put up enough money to cover costs and damages, in case the court temporarily prevents the government from implementing some aspect of its agenda, but ultimately decides the government’s action was legal. In other words, the administration wants parties seeking injunctions against it to first pay up—a strategic ploy to make it too expensive for organizations to sue the administration when it breaks the law.
The problem with Trump’s gambit is that Rule 65(c) lets judges set security at “an amount that the court considers proper.” And when it comes to lawsuits against the government, judges often consider the proper amount to be zero dollars. Waiving security in public interest litigation means poor people can still sue when the government violates their rights. So, House Republicans created another way for Trump to avoid consequences: a provision in the budget bill that prohibits courts from using any congressionally-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.”
This means that if a plaintiff didn’t post the bond, but still sued the government and won an order blocking it from committing some unlawful action, that order basically doesn’t count. The government can disobey the order and even be held in contempt, but that contempt finding would be toothless; there would be no way to actually make the government follow the law. Thousands of existing orders would become useless words on paper, as would any future orders, unless plaintiffs pony up.
Since Trump took office in January, dozens of federal judges have issued injunctions or temporary restraining orders barring the administration’s illegal acts. As the administration keeps openly violating those orders, judges are growing closer to holding the administration in contempt. House Republicans know Trump will not follow the law unless he is made to follow the law. They know contempt is how judges make people do so. And so they’re trying to ensure judges can’t make Trump do anything. The government would be free to violate the law, and the American people will pay for it.
