Senate Republicans Eye Limits on Judicial Power in Tax Bill (1)

Senate Republicans added language to restrict the ability of judges to hand down initial rulings against the federal government in President Donald Trump’s sprawling domestic policy package, though it’s unclear if the proposal will square with chamber rules.

The provision, similar to language in the House-passed language that would limit judges’ contempt powers, was included in the Judiciary Committee’s portion of Republicans’ massive tax bill, released Thursday.

The provision would 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.

This 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.

“It takes a lot of the power and discretion away from courts to be able to consider what is a proper amount of money to ask of someone before they can challenge a wrongdoing by the federal government,” said Suzette Malveaux, a professor at the Washington and Lee University School of Law.

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 country, and several House Republicans have filed resolutions to impeach judges who ruled against the administration.

Sen. Ted Cruz (R-Texas), who chairs the Judiciary Committee’s federal courts panel, said earlier Thursday, before the text was released, that the nationwide injunctions that have been issued against the administration “are an abuse of power” and he would “support just about any remedy to rein that in.”

Power Imbalance

Law professors said the language, if enacted, 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.

This could also allow the government to continue implementing federal policies that would ultimately be ruled unconstitutional for years while litigation continues.

“It could give them a blank check for the balance of Trump’s second administration,” said Lee Kovarsky, a professor at the University of Texas School of Law.

The language echoes a proposal in House Republicans’ version of the bill to prevent judges from enforcing their rulings by holding individuals in contempt unless a financial security was posted.

Senate Democratic leaders called the House proposal an attack on the federal judiciary’s independence and pledged to fight to have the provision removed from the bill.

“The House version was basically setting it up so they can violate court orders with impunity, and the Senate version is making it so they can’t be subject to court orders to begin with. They’re both really bad,” Kovarsky said.

The language could later be stripped out by the Senate parliamentarian, the chamber’s nonpartisan adviser tasked with reviewing the bill to ensure it complies with the so-called Byrd ruling requiring reconciliation bills to primarily affect the budget. Reconciliation measures may advance in the Senate by a filibuster-proof simple majority, allowing Republicans to pass it without any Democratic support.

Several Republican senators have said they didn’t believe the House provision as written, or other efforts to curb judicial power, would comply with that rule.

Still, Senate Judiciary Chairman Chuck Grassley (R-Iowa) has signaled interest in using the reconciliation process to rein in the courts. His spokesperson said earlier this month that judges have been “shirking” their responsibility to require bonds and that the senator “is exploring” permissible ways to incorporate the provision in the reconciliation bill.