A single paragraph buried deep in a spending bill that passed the GOP-controlled House of Representatives earlier this month is causing growing concern among democracy watchdogs who warn the provision will make it so only the well-to-do would be in a good position to launch legal challenges against a Trump administration that has shown over and over again its disdain and disregard for oversight or judicial restraint of any kind.
Coming just about half-way through what President Donald Trump has dubbed the Republican Party's so-called "One Big Beautiful Bill Act"—which progressive critics point out is a giant giveaway to the nation's wealthiest at the expense of the working class and the common good—the language in question is slight, but could have far-reaching impacts.
"This is what autocrats do. Consolidate power, increase the penalty for objecting, ultimately making it more difficult—eventually impossible—to challenge them."
On Saturday, Human Rights Watch (HRW) noted in a detailed social media thread how the provision "hasn't gotten nearly enough scrutiny" from lawmakers or the public.
A recent piece by USA Today columnist Chris Brennan put it this way:
One paragraph, on pages 562 and 563 of the 1,116-page bill, raised alarms for reasons that have nothing to do with America's budget or safety-net programs or debt. That paragraph invokes a federal rule for civil court procedures, requiring anyone seeking an injunction or temporary restraining order to block an action by the Trump administration to post a financial bond. Want to challenge Trump? Pay up, the provision said in a way that could make it financially prohibitive for Americans to contest Trump's actions in court.
HRW details how the provision, if included in the final legislation, "would make it more expensive to fight Trump's policies in court by invoking a federal rule that effectively punishes anyone willing to stand up against the administration."
Anyone seeking a legal action that would involve an injunction request against a presidential order or policy, the group said, would to face a much larger barrier because Republicans would make it so that anyone challenging Trump in court in this way would "have to pay up in the form of a posted bond—something many people can't afford to do. That means only the wealthy will be able to even attempt to challenge the most powerful man in the country."
Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, was among the first to highlight the buried provision, calling it both "unprecedented" and "terrible" in a May 19 essay in which he argued that the ultimate effect of the provision is to shield members of the administration from contempt of court orders through the extraordinary limit on those who can bring challenges in the first place. Chemerinsky writes:
By its very terms this provision is meant to limit the power of federal courts to use their contempt power. It does so by relying on a relatively rarely used provision of the Rules that govern civil cases in federal court. Rule 65(c) says that judges may issue a preliminary injunction or a temporary restraining order "only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." But federal courts understandably rarely require that a bond be posted by those who are restraining unconstitutional federal, state, or local government actions. Those seeking such court orders generally do not have the resources to post a bond, and insisting on it would immunize unconstitutional government conduct from judicial review. It always has been understood that courts can choose to set the bond at zero.
Given his critique, Chemerinsky argued, "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. The House and the Senate should reject this effort to limit judicial power."
Human Rights Watch appeared to agree with the profound dangers to the rule of law if the provision survives to Trump's desk for signature.
"This is yet another sign of Trump's brazen attempts to stop the judicial branch from holding him accountable," the group warned. "This is what autocrats do. Consolidate power, increase the penalty for objecting, ultimately making it more difficult—eventually impossible—to challenge them."