D21 On House GOP Effort To Restrict Enforcement Of Court Contempt Citations Against Trump & His Officials

The provision in the House Republicans’ reconciliation bill to restrict the ability of the federal courts to enforce their decisions through contempt of court findings is an outrageous attack on the judiciary and our constitutional system of government.

It is a blatant power grab.

With the cooperation of congressional Republicans, President Trump wants to turn into reality his absurd claim in 2019 that Article II of the Constitution gives him the “right to do whatever I want as President.” Trump has made clear that he wants no check on his powers despite the roles and powers assigned by the Constitution to the judicial and congressional branches.

The provision in the House reconciliation bill could make many federal court rulings issued this year unenforceable.

The provision would apply to rulings where courts have issued a preliminary injunction or a temporary restraining order (TRO) – including the 165 preliminary rulings against Trump and his Administration that found they failed to comply with the Constitution or federal law.

Government officials are required to comply with any such injunctive relief that has been issued by the courts. If they fail to do so, the courts can enforce the injunction by holding the government officials in contempt of court and fine or jail them for being in contempt.

But under the House provision, courts would be barred from enforcing a contempt citation against government officials for failing to comply with a preliminary injunction or TRO, if the plaintiff bringing the case had not posted a bond at the time the injunction or TRO was issued.

Under current practice, federal courts often waive the requirement that plaintiffs post a bond or set the bond at $0 when a plaintiff applies for a preliminary injunction or TRO.

It is possible that many, if not most, of the 165 injunctions or TROs that have been issued against Trump or his government officials did not have a bond posted when those orders were issued and therefore, under the proposed reconciliation provision, the orders could not now be enforced.

In other words, if the House provision is enacted, Trump and his Administration officials, in cases where there were no bonds posted, would be able to ignore the existing court rulings that are blocking or pausing their actions, without consequence.

For future cases, judges, if they chose to, presumably could avoid the proposed new rule by setting bonds at trivial amounts when an injunction or temporary restraining order is sought in a case against Administration officials. This makes clearer that House Republicans are primarily focused on blocking contempt sanctions in the many current rulings that exist against Trump and his Administration.

The provision proposed by House Republicans in the reconciliation bill is 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.

This provision is another step toward turning our democracy into an autocracy. It must be blocked by the Senate.

Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law, discusses the danger of this provision in Just Security. The provision, Chemerinksy writes, “is an effort by the Trump Administration to negate one of the few checks that exist on its powers.”Read Chemerinsky’s piece on Just Security or below.

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Just Security  |  May 19, 2025A Terrible Idea

By: Erwin Chemerinsky

Now is not the time to limit the ability of federal courts to enforce their judicial orders.  But in light of dozens of federal courts finding actions by President Donald Trump to be unconstitutional, some House Republicans are trying to do exactly that.  A provision in the proposed spending bill would restrict the authority of federal courts to hold government officials in contempt when they violate court orders.  Without the contempt power, judicial orders are meaningless and can be ignored.

There is no way to understand this except as a way to keep the Trump administration from being restrained when it violates the Constitution or otherwise breaks the law.  The House and the Senate should reject this effort to limit judicial power.  Hopefully recent public opinion survey data — showing vast majorities want the Trump administration to stop an action if a federal court ruled it illegal – will guide these legislators to the right outcome. If this anti-democratic legislation is adopted, the courts should declare it unconstitutional as violating separation of powers.

The provision in the proposed budget reconciliation bill states:  “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.”

By its very terms this provision is meant to limit the power of federal courts to use their contempt power.  It does so by relying on a relatively rarely used provision of the Rules that govern civil cases in federal court.  Rule 65(c) says that judges may issue a preliminary injunction or a temporary restraining order “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”

But federal courts understandably rarely require that a bond be posted by those who are restraining unconstitutional federal, state, or local government actions.  Those seeking such court orders generally do not have the resources to post a bond, and insisting on it would immunize unconstitutional government conduct from judicial review.  It always has been understood that courts can choose to set the bond at zero.

Recent temporary restraining orders and preliminary injunctions illustrate this.  For example, federal Chief Judge James Boasberg issued a temporary restraining order preventing individuals from being flown to a maximum security prison in El Salvador without due process—an order that Judge Boasberg found the federal government willfully disregarded.  Federal Judge Paula Xinis has issued orders, affirmed by the Supreme Court, to have Kilmar Abrego Garcia brought back from El Salvador, since he was taken there—the one country in the world that an immigration judge ruled he could not be removed to—without due process and, according to a government lawyer, by mistake.  Several federal courts, including the Supreme Court, have issued orders preventing the Trump administration from using the Alien Enemy Act of 1798 to deport more people to El Salvador without basic due process safeguards.  It would make no sense to require the plaintiffs in these suits to pay bonds to be able to have access to the federal courts.

But the provision in the House bill would make the court orders in these cases completely unenforceable.  Indeed, the bill is stunning in its scope.  It would apply to all temporary restraining orders, preliminary injunctions, and even permanent injunctions ever issued.  By its terms, it applies to court orders “issued prior to, on, or subsequent” to its adoption.

Because federal courts rarely have required plaintiffs to post bonds, it would mean that hundreds and hundreds of court orders – in cases ranging from antitrust to protection of private tax information, to safeguarding the social security administration, to school desegregation to police reform – would be rendered unenforceable.  Even when the government had been found to violate the Constitution, nothing could be done to enforce the injunctions against it.  In fact, the greatest effect of adopting the provision would be to make countless existing judicial orders unenforceable.  If enacted, judges will be able to set the bond at $1 so it can be easily met.  But all existing judicial orders where no bond was required would become unenforceable.

This would be a stunning restriction on the power of the federal courts.  The Supreme Court has long recognized that the contempt power is integral to the authority of the federal courts.  Without the ability to enforce judicial orders, they are rendered mere advisory opinions which parties are free to disregard.

For example, in 1924, the Supreme Court indicated that it would be unconstitutional for Congress to require courts to hold a jury trial before a party could be held in civil contempt for violating a judicial order.  The Court stressed that under Article III of the Constitution, a federal court must have the authority to enforce its orders.  Congress cannot use it powers to undermine the essential functions of the federal courts.

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.

This provision should be stripped from the House spending bill.  If it remains, the Senate Parliamentarian should rule that this is not about federal spending because it would have no effect on revenues and it thus is not appropriately part of a budget reconciliation bill.

But if it comes for a vote, both Republicans and Democrats should reject it as a terrible idea.  Federal courts must be able to hear constitutional challenges to government actions, regardless of who controls the White House, and to provide relief.  The federal courts are a crucial protector of the guardrails of our democracy.  Now is not the time to greatly weaken their power to enforce the Constitution.