Erwin Chemerinsky, the Dean of the University of California-Berkeley School of Law, has spotted a startling provision on the recently passed "Big Beautiful Bill," a massive reconciliation budget bill.
Nestled within the 1,000+ pages of the bill that passed the House on May 21 was this provision:
"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."
But what does that mean?
It appears to be an attempt to restrict the judiciary's ability to enforce its rulings. While it is incredibly broad in scope, it seems aimed at rendering recent court orders against President Trump regarding the deportations of lawful immigrants in the U.S. without due process unenforceable.
Securities for Injunctions and TROs
The first part of the provision deals with Federal Rules of Civil Procedure 65(c). When seeking an injunction or a temporary restraining order, the Federal Rules of Civil Procedure require a federal judge to determine whether a bond is needed. This is so that if the injunction harms the defendant, they can recoup their losses if they win the case.
Usually, the bond requirement is waived when a plaintiff alleges a constitutional violation by the U.S. government. Otherwise, it could be hard for many plaintiffs to challenge government laws and actions as unconstitutional.
An example may help. Kilmar Abrego Garcia was deported to the notorious CECOT prison in El Salvador, as you've likely heard. Federal courts held that he was deported without due process (a ruling the Supreme Court affirmed), noting that the government must allow immigrants time to file a petition for a writ of habeas corpus.
In such a case, it makes sense not to require a security since Garcia (and other detainees) did not have the resources to pay for one and were no longer in the country.
Eventually, the U.S. Supreme Court ordered the Trump administration to "facilitate" Garcia's return. The Trump administration has not done anything so far to bring him back. After being transferred from CECOT, Garcia is still in a different El Salvador prison. This could result in a contempt order, although it seems unlikely SCOTUS will issue one, having not taken any action so far.
Contempt Order Issued
While the Supreme Court has not issued a contempt order, Federal District Court Judge James Boasberg did. He found the Trump administration in contempt of court for failing to follow his orders to stop deporting Venezuelan immigrants to CECOT. Contempt of court orders are enforced by the U.S. Marshals Service, part of the executive branch. Congress appropriates its funding.
Should the Big Beautiful Bill pass as written by the House, Judge Boasberg's contempt order would be unenforceable.
"Prior to" Enactment
If it passes, federal judges could begin requiring a nominal amount of security to comply with the bill's provisions. There would likely be a lot more $1 securities required when bringing constitutional challenges against federal, state, and local governments.
However, it's important to note the provision applies retroactively. This means every federal court injunction or TRO that waived the security requirement would be rendered unenforceable. This includes cases that do not involve constitutional challenges or the government. As just one example, any recent copyright cases with an injunction could be included.
Worth Monitoring
This provision could be scrapped in the Senate. The Senate Parliamentarian could also, as Chemerinsky suggested, dismiss the provision since it is unrelated to budget reconciliation.
Amid all of the other considerations within the budget reconciliation bill, this provision is still well worth monitoring.
Related Resources
- Court Blocks DOJ's Attempt to Defund ABA Domestic Violence Services (FindLaw's Federal Courts)
- Court Curbs Trump's Power to Deport Venezuelans as 'Alien Enemies' (FindLaw's Federal Courts)
- Federal Law Prohibits the Deportation of Incarcerated U.S. Citizens (FindLaw's Law and Daily Life)
