WASHINGTON – A controversial provision in the House-passed version of President Donald Trump’s package of legislative priorities, which critics warn would hinder the enforcement of court orders, remains in the Senate version of the bill.
The head of the Judiciary Committee, Sen. Chuck Grassley, R-Iowa, released his draft of the legislation June 13 that included the provision that Trump requested to combat court orders blocking his policies.
Some fellow Republicans in the narrowly divided Congress have said they would oppose the bill over the provision or that it would be removed through a parliamentary maneuver. But its inclusion in the Senate draft reflects the support of leadership to include and defend it.
Legislation would require litigants to post bonds before courts could enforce orders
The provision would require judges to collect bonds from litigants challenging the government before blocking policies through injunctions or temporary restraining orders. Without a bond, the provision would prevent judges from enforcing their orders through contempt proceedings.
Judges have always been able to collect bonds in civil lawsuits, essentially to ensure that defendants are reimbursed if they eventually win their cases. But judges traditionally don’t collect bonds in cases against the government because the disputes are over policy rather than money like in a lawsuit between two businesses.
Trump and his Republican allies would like to change that. He signed a memo in March directing the Justice Department to ask for bonds in all civil cases against the administration.
Judges have temporarily blocked dozens of his policies. If the legislation were enacted, it would undo those blocks until judges set bonds.
Bonds could reach trillions of dollars in cases against government
Judges could set a nominal bond of $1, according to legal experts. But if they set a larger bond that litigants couldn’t afford, judges wouldn’t be able to enforce their orders and the Trump administration could ignore them, experts said.
In February, U.S. District Judge Loren AliKhan refused a request from Trump’s White House Office of Management Budget to require a bond from the National Council of Nonprofits when she blocked the government from freezing all federal grants. She said it could have required trillions of dollars because that was how much was at stake in the case but that OMB would suffer no monetary damage from the case.
“The court declines,” Alikhan wrote.
Some GOP lawmakers opposed the provision they weren’t aware was in House-passed bill
If the Senate changes the legislation, the House would have to vote on the bill again. Some GOP lawmakers have voiced opposition to the provision at raucous town halls.
Rep. Mike Flood, R-Nebraska, said May 27 he was unaware of the provision and didn’t support it when he voted for the bill. The House approved the bill on a 215-214 vote, so any potential loss of support could hurt the bill’s chances.
Sen. Joni Ernst, R-Iowa, said May 30 the bond provision “will not be” in the Senate-approved bill because she expected it to be removed by the parliamentarian under a rule requiring everything in the legislation to have an impact on the budget.
This article originally appeared on USA TODAY: Senate keeps provision for curbing court orders in Trump bill
