The bill could stop federal courts from enforcing their rulings, eliminating any restraint on Trump
If enacted, Donald Trump’s Big Ugly Bill as it emerged on Thursday from the House of Representatives would result in the largest redistribution of income and wealth in American history – from the poor and working class to the rich.
Hidden within the bill is also a provision that would allow Trump to crown himself king.
For months now, Trump has been trying to act like a king by ignoring court rulings against him.
The supreme court has told Trump to “facilitate” the return of Kilmar Ábrego García, a legal resident of the United States who even the Trump regime admits was erroneously sent to a brutal prison in El Salvador.
Trump has done nothing.
Lower federal courts have ordered him to stop deporting migrants without giving them a chance to know the charges against them and have the charges and evidence reviewed by a neutral judge or magistrate – the minimum of due process.
Again, nothing.
Judge James Boasberg, chief judge of the federal district court for the District of Columbia, issued a temporary restraining order preventing the Trump regime from flying individuals to the prison in El Salvador without due process.
Judge Boasberg has found that the Trump regime has willfully disregarded his order.
Is there anything that the courts can do in response to Trump’s open defiance of judges and justices?
They have only one power to make their orders stick. They can hold federal officials in contempt, and enforce such contempt citations by fining or jailing them.
It’s a radical remedy, rarely used. But several federal judges are at their wits’ end.
Boasberg said that if Trump’s legal team does not give the dozens of Venezuelan men sent to the Sallvadorian prison a chance to legally challenge their removal, he’ll begin contempt proceedings against the administration.
In a separate case, the US district court judge Paula Xinis has demanded that the Trump administration explain why it is not complying with the supreme court order to “facilitate” the release of Ábrego García.
Xinis has even questioned whether the administration intends to comply with the order at all, citing a statement from the. homeland security chief, Kristi Noem, that Ábrego García “will never be allowed to return to the United States”.
According to Xinis, “That sounds to me like an admission. That’s about as clear as it can get.”
So what’s the next step? Will the supreme court and lower courts hold the administration in contempt and enforce the contempt citations?
Trump and his Republican stooges in Congress apparently anticipated this. Hidden inside their Big Ugly Bill is a provision intended to block the courts from using contempt to enforce its orders. It reads:
“No court of the United States may use appropriated funds to 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 …”
Translated: no federal court may enforce a contempt citation.
The measure would make most existing injunctions – in antitrust cases, police reform cases, school desegregation cases and others – unenforceable.
Its only purpose is to weaken the power of the federal courts.
As Erwin Chemerinsky, UC Berkeley School of Law dean and distinguished professor of law, notes, this provision would eliminate any restraint on Trump.
“Without the contempt power, judicial orders are meaningless and can be ignored. There is no way to understand this except as a way to keep the Trump administration from being restrained when it violates the Constitution or otherwise breaks the law …
“This would be a stunning restriction on the power of the federal courts. The Supreme Court has long recognized that the contempt power is integral to the authority of the federal courts. Without the ability to enforce judicial orders, they are rendered mere advisory opinions which parties are free to disregard.”
In other words, with this single measure, Trump will have crowned himself king.
If it is enacted, no Congress and no court could stop him. Even if a future Congress were to try, it could not do so without the power of the courts to enforce their hearings, investigations, subpoenas and laws.
The gross unfairness of Trump’s Big Ugly Bill is bad enough. It would worsen the nation’s already near-record inequalities of income and wealth.
But the provision inside the bill that neuters the federal courts is even worse. It would remove the last remaining constraint on Trump, and thereby effectively end American democracy.
Robert Reich, a former US secretary of labor, is a professor of public policy emeritus at the University of California, Berkeley. He is a Guardian US columnist. His newsletter is at robertreich.substack.com