Sneaky add to GOP bill lets Trump 'violate law faster than courts can stop' him

House Republicans tucked away a brief provision that could reverse some of President Donald Trump's legal setbacks and reduce the average American's access to the courts.

The provision, called section 70302, would effectively block courts from enforcing injunctions unless the party bringing the legal challenge pays a bond — which means judges couldn't issue contempt orders against defendants who defy the courts unless the person that's suing forks over a bond at the start of their challenge, reported HuffPost.

“We call it the Get-out-of-contempt-free card,” Rep. Laura Friedman (D-CA) told the Washington Post. "It lets government officials and the Trump administration break the law without any accountability. It’s a very, very dangerous piece of policy snuck into the bill that I think even most Republican members of Congress had no idea was in the budget bill.”

Rep. Mike Flood (R-NE) admitted as much at a recent town hall, adding that he supports courts being able to enforce their injunctions, and the provision in the House-approved bill applies retroactively – without any specified time limit.

"This could mean that injunctions handed down by the courts years ago — like those instructing the government to stop segregating schools, for example, and any other where a bond was not taken — could potentially be undone if a bond was not taken first, Erwin Chemerinsky, dean and distinguished professor of law at Berkeley Law School, recently told HuffPost."

The Federal Rule of Civil Procedure 65(c) has instructed judges since 1938 that they can only hand down preliminary injunctions or temporary restraining orders if they first issue a "proper" bond, which is entirely at their discretion, meaning they could set such a bond at $1 or even $0, but the vaguely worded provision doesn't clarify whether those nominal bonds would also be swept up.

“By requiring a bond or security, the defendant is protected from an erroneous injunction or restraining order," said Senate Judiciary chairman Chuck Grassley (R-IA) in a letter defending the bonds to attorney general Pam Bondi in March. "Moreover, the bond deters frivolous lawsuits.”

However, the provision may fail in the Senate because it likely doesn't meet the requirements of the Byrd Rule, which prohibits senators from passing a budget bill that includes anything "extraneous" that's not related to fiscal spending.

Section 70302 “really is beyond the pale for a budget reconciliation bill,” Bill Hoagland, former director of budget and appropriations for former Senate majority leader Bill Frist (R-TN). “First it is a policy not a budget item and for the love of me I cannot imagine how [the Congressional Budget Office] could even estimate its budget impact and who would be impacted financially. No way.”

The House provision attempts to meet the Byrd Rule's standards by saying courts can't use appropriated funds to enforce a contempt citations, and are instead enforced by the congressionally funded U.S Marshals service, but legal experts argued that “connection is incredibly thin.”

“The Byrd Rule requires budget reconciliation measures to have a direct fiscal impact, and this is fundamentally about restricting judicial power, not spending,” said Khadijah Silver, the supervising attorney for civil rights at Lawyers for Good Government. “More importantly, as the Supreme Court established nearly a century ago in Michelson v. United States, Congress cannot undermine the essential functions of federal courts. The contempt power is integral to judicial authority under Article III — without it, court orders become meaningless suggestions that the executive branch can ignore at will.”

If the provision manages to survive the Byrd Rule and a Senate vote, Silver said it would "embolden government excesses and hobble judges’ ability to enforce their rulings."

“This provision would render hundreds of existing court orders unenforceable overnight," Silver said. "We’re talking about everything from school desegregation orders to police reform mandates to protection of immigrants’ due process rights. It would create a ‘catch me if you can’ system where the government could violate the Constitution faster than courts could stop them. This isn’t about fiscal responsibility — it’s about neutering the last meaningful check on executive power when it tramples our constitutional rights.”