Tax Bill Measure Targeting Judges Unlikely to Clear Senate (1)

A provision in House Republicans’ sprawling budget package that would limit judges’ authority to enforce their rulings faces an uphill battle in the Senate, as senators signal such efforts are unlikely to square with the chamber’s rules.

Two Senate Judiciary Committee Republicans said Tuesday that it would be difficult for language reining in the judiciary—a priority for congressional Republicans—to advance through the reconciliation process as part of President Donald Trump’s signature domestic policy bill.

Republicans want to push the broader package through the Senate without Democratic support via reconciliation, which allows bills to pass with a filibuster-proof simple majority. However, those measures must comply with the so-called Byrd Rule that requires provisions in reconciliation bills to affect the budget, and any offending provisions would be stripped out during a review by the chamber’s parliamentarian, in a process known as a “Byrd bath.”

Sen. Eric Schmitt (R-Mo.), the former Missouri attorney general, said while reconciliation could “possibly” be a vehicle for efforts broadly to curb judicial power, “in the Senate obviously, with the Byrd rule, it’s a little bit more challenging.”

It would be “pretty tough” to include that kind of language in a reconciliation bill given those rules, Sen. Josh Hawley (R-Mo.) said.

They are the latest Republican senators to cast doubt on the measure’s prospects. Sen. Joni Ernst (R-Iowa) said during a town hall on May 30 that she expects the House’s judiciary provision to be removed during the Senate review process.

“I don’t see any argument that could ever be made that this affects mandatory spending or revenue. I just don’t see that. I don’t see it getting into the Senate bill,” Ernst said.

Several other Judiciary Republicans demurred when asked about the provision on Tuesday, saying they hadn’t looked at it yet.

The provision represents a small portion of Republicans’ massive bill that’s now landed at the Senate, after passing the House last month.

It would bar federal courts from holding individuals in contempt of court for violating an order unless the challengers had put up a financial security, or a money bond. This would effectively limit the circumstances when judges could enforce their own orders blocking Trump administration policies, since bonds aren’t commonly ordered in constitutional challenges.

Senate Democrats also panned the provision and said they don’t see it having sufficient connection to the budget.

“I suspect that it’s going to fall under the Byrd rule as not being related to the budget,” Sen. Sheldon Whitehouse (D-R.I.) said.

Sen. Chris Coons (D-Del.) described the proposal as a “dangerous” measure that “profoundly weakens the role of federal courts” and “should be struck in the Byrd bath process.”

“I think it doesn’t survive the Byrd bath. I think making it retroactively applicable is harmful. And I look forward to the counter argument,” Coons said.

Senate Minority Leader Chuck Schumer (D-N.Y.), cited the measure as an example of one of the policies in the Republican package “in clear violation of the reconciliation rules” in a June 1 “Dear Colleague” letter.

“Should Senate Republicans include this rotten provision, I vow, alongside all of you, to fight tooth and nail to strike this authoritarian attack on our system of justice,” Schumer wrote.

The proposal is part of broader efforts by House Republicans to limit judges’ authority following rules blocking the Trump administration policies nationwide. Senate Republicans held a Judiciary Committee hearing Tuesday titled “The Supposedly ‘Least Dangerous Branch': District Judges v. Trump,” where they called for more limits on judges’ power to issue rulings with nationwide impact.

At least two federal judges in Maryland and Washington, D.C. have indicated they’re eyeing possible contempt proceedings against Trump administration officials for not fully complying with court orders in challenges to the White House’s deportation policies.