Big Beautiful Bill Could Make Enforcement of Judicial Orders Impossible to Enforce
There is a provision buried in the “Big Beautiful Bill” that is getting lots of attention in the legal community:
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.
What this means is that unless an injunction or order requires the plaintiff to post a security bond, the subject of the injunction can willfully disobey the order with no risk of a contempt citation. The intent here is to make court orders against the Trump Administration unenforceable, but the potential fallout is huge. As just one example, businesses who benefited from injunctions against their intellectual property may soon find these injunctions unenforceable.
Rule 65(c) of the Federal Rules of Civil Procedure requires a judge to determine whether to require the plaintiff to post a bond that can be used to reimburse the defendant for any harm done by the injunction. In private litigation this can sometimes make a great deal of sense. Plaintiffs are generally business that can afford a bond, and it offers protection to the defendant, who might suffer harm because of the injunction. Even in this context, however, Rule 65(c) bonds are not always required, and they are never required for permanent injunctions.
In constitutional litigation against the federal, state and local government, such security bonds are rarely required for the simple reason that the bond—likely to be massive—would make vindication of constitutional rights simply out of reach. This is true of injunctions issued against both Republican and Democratic Presidents.
Erwin Chemerinsky, the Dean of the University of California-Berkeley School of Law, was the first to spot this provision and raise the alarm:
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.
I am sure that the Trump Administration and the House Republicans think this is a clever way to stop legal challenges to Trump’s unconstitutional actions. The implications, however, go well beyond litigation against the Trump Administration.
The proposed language applies to all “injunctions”, which would seemingly include final permanent injunctions issued by trial courts, and not just temporary restraining orders or preliminary injunctions. Rule 65(c) bonds, however, are never required for permanent injunctions. This would seem to mean that every existing permanent injunction will suddenly be unenforceable. This should be of significant concern to businesses with patents or other intellectual property. The injunctions they obtained to stop infringements of their patents, copyrights, trademarks and trade secrets will suddenly be unenforceable.
Moreover, injunctions that businesses might have obtained challenging state, local and federal actions—whether preliminary or permanent—will also become unenforceable.
Businesses that challenge contract awards in the Court of Federal Claims almost always seek a preliminary injunction of the award while the dispute is pending. These injunctions are generally granted—rarely with a bond required. Will contractors now challenging contract actions in the Court of Claims now find themselves with unenforceable orders?
The intended impact on challenges to Trump’s unconstitutional orders is obvious. But, the impact is far broader. It is time for the business community to wake up and contact their Senators before they find themselves victims of this provision. They too will be victims.