Column: How an obscure budget provision could upend judges' contempt power

By Jenna Greene

May 29 (Reuters) - At first glance, an obscure provision tucked into the sweeping tax and immigration bill passed by the House last week limiting the authority of federal judges to enforce contempt sanctions might look to some like a free pass for Trump administration officials to defy injunctions.

The provision would bar judges from enforcing contempt citations against defendants for failing to comply with court orders. That is, unless the plaintiff paid a security bond at the outset of the case — something which rarely happens, especially in public interest cases involving the government.

Democrats tried and failed to remove the language before the House narrowly passed the bill and sent it to the U.S. Senate.

As the Trump administration faces more than 200 lawsuits, critics say the provision would make it easier for government officials on the losing end to violate injunctions and temporary restraining orders without worrying about being held in contempt – punishment that can include fines or even jail time.

On closer inspection, though, those worries may be overblown, at least for cases pending against the Trump administration and any future cases where the provision might apply should it become law.

“It would be very easy to evade,” said Notre Dame Law School professor Samuel Bray, a constitutional law scholar. In most instances, courts could simply dissolve pending injunctions and reissue them with a bond set as low as $1.

But its retroactive effect – perhaps unintentionally included in the provision's language — would be “profound,” said UC Berkeley School of Law dean Erwin Chemerinsky, rendering permanent injunctions in long-resolved cases unenforceable through contempt proceedings. But more on that later.

Still, Chemerinsky questions whether the provision will make it through the Senate, where the Byrd Rule restricts the inclusion of "extraneous" items in budget reconciliation bills.

He also doubts it could survive a constitutional challenge. The power to hold a litigant in contempt is “an inherent part of the court's authority,” he said. For Congress to undermine it “violates the separation of powers.”

A House Judiciary Committee spokesperson did not respond to a request for comment, but chair Jim Jordan in press release framed the provision as a way to combat the "the abusive use of nationwide injunctions."

So how did we get here?

The starting point is Federal Rules of Civil Procedure 65(c). The rule states that a court may only issue a preliminary injunction or temporary restraining order if the plaintiff first pays a security "in an amount that the court considers proper" to cover the defendant's losses if an appeals court later determines the order was improperly granted and dissolves it.

In practice, Bray told me, judges have discretion to determine the amount of the security – and most often, it’s zero dollars.

“There’s a legitimate concern that judges don’t want to price people out of getting justice,” he said. “They don’t want the cost of paying the bond to be an obstacle.”

In March, President Donald Trump issued a memo directing federal agencies to seek bonds in cases where plaintiffs seek injunctions if the requested relief would cost the government money — for example, by mandating the continued funding of a program.

“Activist groups file meritless suits for fundraising and political gain, facing no consequences when they lose, while taxpayers bear the costs and delays,” the White House said in a fact sheet announcing the policy.

A White House spokesperson referred me to the U.S. Justice Department, which declined comment.

In the weeks since the president’s memo, I’ve found multiple instances of federal prosecutors asking courts to require hefty bonds from plaintiffs. What I’ve not yet seen are reports of judges actually granting them. Instead, they've exercised what until now has been their prerogative to set bonds as they see fit.

For example, in suit by a group of nonprofits challenging the Trump administration’s freeze on billions of dollars in funding, the government requested that the plaintiffs put up “a bond commensurate with the dollar value of grant funds.”

In April, U.S. District Judge Mary McElroy in Rhode Island said no, writing that it would “defy logic” to hold the nonprofits “hostage” for the cost of the cuts.

Then there was the judge in Maryland, who also refused the government’s request for a bond when he issued a nationwide injunction in a case challenging the termination of DEI-related grants and contracts.

Because the plaintiffs were seeking to protect their constitutional rights, and “because a bond of the size Defendants appear to seek would essentially forestall Plaintiffs’ access to judicial review,” U.S. District Judge Adam Abelson in February set a "nominal bond of zero dollars."

Three weeks later, the 4th U.S. Circuit Court of Appeals stayed his injunction, ruling the administration was likely to prevail on appeal. With no bond at stake, however, the plaintiffs are spared a financial hit.

Against this backdrop, House Republicans in April offered Section 70302 – a single sentence in the 1,100-page legislation — restricting the ability of judges to enforce contempt citations unless a security bond was provided. It applies “prior to, on, or subsequent to” its adoption.

This might incentivize plaintiffs to agree to post bonds and perhaps deter some from filing suits in the first place. In theory, it might also shield government officials facing the prospect of contempt charges in connection with deporting migrants — though as noted earlier, the judges could counter this by re-issuing the injunctions and adding a $1 bond.

The law professors say Section 70302's biggest impact would come from what may have been careless drafting. That is, the legislation says “an injunction” rather than specifying a preliminary injunction.

As written, that means it would also apply to permanent injunctions — the kind granted after a case has been adjudicated — sweeping in final orders that are years or decades old and could not easily be re-issued, the law professors tell me. Injunctions in cases involving everything from antitrust violations to school desegregation to police reform would become unenforceable.

Moreover, Federal Rule 65(c) exempts the government from putting up a security bond when it seeks an injunction – say, to block a corporate merger or prevent a securities law violation. Section 70302 does not.

Nor is the provision limited to cases involving the government. It would also scuttle enforcement of bond-less injunctions in litigation between private parties – a patent dispute, for example, or trade secrets fight.

Which means that while the provision might be easy to evade going forward, it could wreak havoc retroactively.