WASHINGTON, D.C. – The House Republican megabill they passed recently aims to move forward with President Donald Trump’s agenda by cutting spending and taxes, but tucked away in the bill is a small provision that could have a big impact on our legal system. Some worry it could restrict the courts from enforcing injunctions unless the plaintiffs provide some sort of security, like a bond.
Experts said the provision could restrict courts from enforcing contempt citations for violations of injunctions or temporary restraining orders unless the party bringing the suit provides a bond.
Several lawsuits have been filed against the Trump administration, challenging his actions and executive orders. Federal judges have issued injunctions, essentially blocking the President’s orders from being carried out. Some argue this provision could undermine the court system by allowing the Trump administration to disregard legal accountability.
“One thing the budget bill that passed last week has a provision which is to make the party getting the injunction post a bond,” said attorney Seth Kretzer. “Most injunctions in civil litigations there needs to be a bond posted. Injunction isn’t binding until there’s a bond. So, if you want to get preliminary relief maybe you as the plaintiff will have to post a million dollars to secure that defendant against the idea that TROs, temporary restraining order, is vacated, the injunction is found to be bad. You can’t get contempt on it until it’s bonded.”
Kretzer said it would be difficult for ordinary litigants to do this.
“When you’re dealing with public interest organizations who are dealing with, I don’t know, poor detainees, nobody has millions and millions of dollars here if we are now doing an estimate of the amount of damage the federal government can say ‘oh you have to put up a 100-million dollar bond’ that way they can legislatively short circuit the ability of actually anyone to get injunctive relief,” said Kretzer. “Look, civil companies, big corporate defendants are able to go to insurance companies and they partial this across numerous different ones and come together just like underwriting a deal and are able to post a bond but clearly nonprofits aren’t going to have access to that. So, if they’re looking for legislative fix to shut this down that would probably be the easiest way to do it. To declare that a bond is necessary in every one of these cases and none of these public interest groups will be able to post it.”
In a recent town hall meeting, House Republican representative Mike Flood (R- NE) g t pushback over this provision. The Representative told the crowd he didn’t know about this provision when he voted for the bill and does not approve of it. It’s unclear if this provision will survive in the Senate’s version of the bill.
