(Photo by Scott Olson/Getty Images)
A little-noticed provision buried in a recent House Republican bill could have sweeping consequences for the American legal system including the potential reversal of major court rulings and a significant barrier to justice for everyday citizens.
Section 70302 of the House-approved budget bill, as first reported by HuffPost, would prohibit courts from enforcing injunctions unless the plaintiff pays a bond up front. Legal experts warn this change would effectively strip judges of their power to hold defendants in contempt, including government officials, unless the party filing the lawsuit can afford the cost.
“We call it the Get-out-of-contempt-free card,” said Rep. Laura Friedman (D-CA) in an interview with The Washington Post. “It lets government officials and the Trump administration break the law without any accountability. It’s a very, very dangerous piece of policy snuck into the bill that I think even most Republican members of Congress had no idea was in the budget bill.”
Even some Republicans appear caught off guard. Rep. Mike Flood (R-NE), speaking at a town hall, acknowledged he supports court enforcement and noted that the provision applies retroactively potentially impacting long-standing injunctions like those against school segregation, according to legal scholars.
“This could mean that injunctions handed down by the courts years ago like those instructing the government to stop segregating schools, for example… could potentially be undone if a bond was not taken first,” warned Erwin Chemerinsky, dean of Berkeley Law School.
Since 1938, federal rules have allowed judges discretion in setting bonds sometimes as low as $0 when issuing temporary orders. But critics argue the vague language of Section 70302 puts even those nominal bonds at risk.
Supporters of the provision, such as Sen. Chuck Grassley (R-IA), say it protects defendants. “By requiring a bond or security, the defendant is protected from an erroneous injunction or restraining order,” he said in a letter defending the policy.
However, legal and budget experts say the measure likely violates the Byrd Rule, which bars unrelated policy provisions from being included in budget reconciliation bills.
“This provision would render hundreds of existing court orders unenforceable overnight,” warned Khadijah Silver of Lawyers for Good Government. “This isn’t about fiscal responsibility it’s about neutering the last meaningful check on executive power when it tramples our constitutional rights.”
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