GOP Bid to Limit Judicial Power Rejected by Senate Referee (1)

Senate Republicans’ language restricting the ability of judges to hand down initial rulings against the federal government included in a massive tax cuts and spending bill doesn’t adhere to Senate rules.

The proposal, similar to language in the House-passed bill limiting judges’ contempt power, violates the “Byrd Rule” limiting provisions in reconciliation bills that don’t have budgetary effects, according to a Saturday night notice from Senate Budget Committee Democrats.

Republican senators had sought to bar federal judges from issuing a preliminary injunction or temporary restraining order against the federal government, unless the challengers had put up a financial security, or a money bond.

If enacted, the requirement would limit the circumstances when judges could block Trump administration policies while litigation continues, since bonds aren’t commonly ordered in constitutional challenges. The proposal also states that judges may not consider any other factors besides the costs and damages to the government when deciding bond amounts.

Senate Parliamentarian Elizabeth MacDonough concluded the provision would be subject to the Byrd Rule and be subject to a 60-vote threshold, according to the notice from Senate Budget Committee Democrats.

A spokesperson for Judiciary Committee Chairman Chuck Grassley (R-Iowa) said by email Sunday that Republicans “will continue using all available avenues to secure our borders, clean up the mess left by the Biden-Harris administration’s disastrous policies and ensure courts operate according to lawful and constitutional standards.”

The effort is part of broader Republican-led efforts to restrict judges’ powers, following dozens of orders blocking the Trump administration’s agenda.

Republicans have criticized nationwide injunctions, or rulings that block policies across the US, and several House Republicans have filed resolutions to impeach judges who ruled against the administration.

Law professors said such a requirement would aggravate the existing power imbalance between the federal government and individuals and nonprofits who challenge federal policies, and make it harder for those groups to go to court and win faster relief.

Several Republican senators had previously said they didn’t believe the House provision as written, or other efforts to curb judicial power, would comply with the Byrd Rule.