Walter Olson
The House Judiciary Committee on April 28 released budget reconciliation language that would do a truly remarkable thing: ban federal judges from enforcing most contempt of court penalties arising from the violation of court orders.
Notre Dame Law Professor Sam Bray, a leading scholar on court orders, analyzes the provision here. CNN has also written up a more popular account. It’s important to note that the provision may face removal as violative of the so-called Byrd rule, which generally bars provisions in budget reconciliation that do not primarily advance budget objectives.
The direct targets of the newly added language, one may suspect, are federal judges such as James Boasberg in Washington, DC, and Paula Xinis in Greenbelt, MD, both of whom recently directed the federal government to show cause why it should not be held in contempt for violating their previous orders on alien removal. It’s likely that more contempt proceedings will emerge in the coming weeks directed at federal agencies, including the US Department of Justice and the Department of Homeland Security. I wrote about these developing showdowns in a piece for The Dispatch this week.
Note well that the House language does not confine itself to court orders in a particular subject area, such as deportation or alien removal. It extends to every injunction or temporary restraining order in every sort of issue area, except for those for which security has been given (on which exception more below).
Currently, if the administration or anyone else cited for contempt believes that the judge’s order has a faulty basis, their lawful remedy is to appeal the order to a higher federal court. But if the district judges are no longer in a position to enforce contempt orders, why even bother appealing? The feds (and others, too) could just thumb their noses at them and go on their way.
The one exception arises from the language exempting from coverage court orders in which courts have issued a security bond. As Prof. Bray notes, courts “almost never” require security “when a suit is brought against a government defendant.” So the idea may be that while courts would lose contempt authority in that high-profile class of cases, they could still go on exercising it in a class of cases that the administration finds less irritating.
The ploy might not work for long; aware of the provision and desirous of maintaining contempt power, courts might start imposing bonds, perhaps token ones of $1, when issuing new orders, including those against federal agencies as defendants. But the wider problem is that security bonds are typically employed only in court orders of limited time duration — that is to say, temporary restraining orders and preliminary injunctions — and very seldom in permanent injunctions. Even if bonding practices change, the language would presumably gut the enforceability of most permanent injunctions already reached.
That would be a big deal in every sense. It would effectively nullify existing permanent injunctions obtained by every previous US Department of Justice in its role as complainant—a dramatic setback for law enforcement.
Another effect would be to gut the enforcement of injunctions that did not involve the government on either side. Bray cites as an example an injunction in which a business competitor found to have infringed a valid patent was enjoined from doing so in the future. In cases of that sort, it would “be open season for violations without any possibility of contempt enforcement. If that’s intended, it’s an evisceration of the results of the judicial process over decades.” It’s also a direct assault on some of the most vital legal underpinnings of private property rights, such as the right not to have real property encroached on, which are commonly enforced by way of injunction.
But back to the main intent of the provision: to a first approximation, it appears meant to spare the federal government any legal consequences for even deliberate, continuing, and belligerent defiance of court orders. And the escalating tensions between the administration and the courts aside, it’s astounding to think the result could be to release the federal government from the effect of innumerable previous injunctions that past courts issued after finding that government agencies or law enforcers had violated private rights and were likely to do that again unless restrained. Talk about open season on rights!
Contempt powers protect important rights. When the government tramples lawlessly on your interests, court orders—and the mechanisms for enforcing them—are often going to provide your only practical remedy. If a federal agency takes a notion to seize your house, business, firearms, or bank accounts, a federal judge currently can hear the evidence and tell the agency to give those things back.
If this language passes into law, the judge could soon be rendered as powerless as you.
Adapted and condensed from a post at my Substack.