It’s big, but not beautiful

Rick Morain

Donald Trump got it half right about the recent omnibus tax-plus-everything else bill that the U.S. House passed on Tuesday last week. It’s big, but it ain’t beautiful.

The bill worries many, many Americans over the implications of its economic impacts, particularly those of modest incomes and of advanced years. But the 1,100-plus page tome also squirrels away lots of stuff that’s not remotely budget related. One of scariest items reads as follows:

“No court of the United States may 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.”

Sounds either innocuous or incomprehensible to us mere mortals, at least to this one. But dig a little deeper, and it suddenly becomes really frightening.

The nub of the situation: plaintiffs have secured injunctions against a number of Trump policies in the past few months. In standard procedure, when a plaintiff asks a judge for an injunction against a government action, a “security” has rarely been required.

“Security” in such situations refers to a bond which the plaintiff would have to put up, so that if the court denies the injunction, the defendant (in this instance the government) would be repaid by the bond for any monetary losses it sustained in its legal defense.

Bonds are often customary in private lawsuits, especially where the lawsuit is brought for frivolous reasons, mainly to saddle the defendant with exorbitant legal costs. But such bonds are almost never sought in suits against the government.

Think about it — is it likely that a government body would suffer major monetary loss defending against an injunction? It’s much more likely that the plaintiff had to scrape together enough money to bring the suit in the first place.

A judge could set the plaintiff’s bond at a ridiculously low level — say $100 — if the provision in the new bill is adopted: there’s no minimum amount stipulated in the bill. So the purpose of the new provision seems puzzling. At first.

The real reason for the provision could well be the fact that if adopted, it applies retroactively. There’s no path for a plaintiff who has already sought, or received, an injunction against the White House to go back and post a bond (“security”) now.

Bottom line: if the Trump administration refuses to obey a court injunction already ordered against an action it’s already taken, the administration can’t be held in contempt. That means the Trump administration can disobey a court order with impunity, and come away unscathed.

What does that mean for the rule of law in America?

The U.S. Constitution has something to say about what the item in the House-passed bill is trying to do. Article I, Section 9, Clause 3 of the Constitution reads as follows: “No Bill of Attainder or ex post facto law shall be passed.” A bill of attainder is an action by a government that imposes punishment on the accused without granting a trial or judicial proceedings. That’s an important constitutional provision, but it’s not particularly relevant here.

The ex post facto part, though, is. An ex post facto law punishes someone retroactively, for an act that was legal when it was committed. It’s hard to deny that’s exactly what retroactive application of the bond requirement does to plaintiffs who were already granted injunctions against the Trump administration. Especially when they cannot now post the required bond.

I’m not a lawyer. Neither are any of Iowa’s four U.S. Representatives, all of whom are Repblicans and all of whom voted for the “big beautiful bill.” But lack of a law degree shouldn’t absolve any lawmaker from responsibility for erasing the contempt power of a federal court.

Of the 435 U.S. Representatives, 132 of the current batch, about 30%, are attorneys. I strongly suspect that some of those are Republicans, almost all of whom voted for the bill. Did the provision disempowering the courts from enforcing injunctions against the government give pause to any of them?

As I write this column, last Sunday, the House-passed bill now awaits action in the Senate. Like their Iowa colleagues in the House, neither Senator Chuck Grassley nor Senator Joni Ernst holds a law degree (although Grassley is the current and a past chair of the Senate Judiciary Committee, and Ernst formerly sat on it as a member). But it is to be hoped that they both will question whether depriving the courts of the ability to enforce contempt citations against the government is appropriate.

When Ernst campaigned on the mantra “Make ‘Em Squeal,” I doubt Iowans thought she meant to emasculate the courts.

Rick Morain is a reporter and columnist with the Jefferson Herald.