Wild: House bill would strip courts of contempt enforcement power

In the ongoing public discussion about whether the courts will try to rein in the Trump administration’s lawlessness, or will prevail in a resulting showdown if they do, the story that follows has been simmering below the surface for a couple of weeks. One reason the crazy idea I’ll describe in a moment hasn’t set off louder alarm bells is that many observers expect that one way or another it won’t survive to become law. In particular, it could get stricken from the so-called reconciliation bill for running afoul of the Byrd rule, which bars provisions in that kind of bill that don’t relate closely enough to budget objectives. Or it could be pulled on some other rationale. If the crazy idea somehow makes it into law, the courts might find it unconstitutional. That’s comforting, I suppose.

I’m going to talk about the crazy idea, though, because I think even if America’s constitutional arrangements dodge this particular arrow, we need to ask ourselves how we got to such a point that it could be shot in the first place.

Notre Dame law professor Sam Bray, a leading scholar on court orders and legal remedies, describes the provision here. His account is compact as well as authoritative, only ten paragraphs, so I recommend reading the whole thing.

In brief, the House Judiciary Committee on April 28 released reconciliation language that would ban federal judges from enforcing contempt of court rulings across a very wide range of existing court orders, with some exceptions strategically carved out as discussed below. The language does not confine itself to a particular subject area, such as court orders in deportation or alien removal cases; it extends over every sort of issue area in which an injunction or temporary restraining order has been issued.

The direct targets, one can readily imagine, are federal judges such as James Boasberg in D.C. and Paula Xinis in Maryland who have recently started proceedings in which they have directed the federal government to show cause why it should not be held in contempt for violating their previous orders on alien removal. Around the country, other cases are moving in the same direction and might well result down the road in contempt proceedings against the U.S. Department of Justice and other federal agencies. I wrote about these impending contempt showdowns for The Dispatch this week.

Currently, if the administration thinks a contempt order against it has a faulty basis, its lawful remedy is to appeal the order to the higher federal courts. This new language seems meant to spare them that trouble — the district judges having lost their power to enforce contempt orders, the feds could just thumb their noses at them.

There are a couple of possible exceptions to note. One is that Congressional appropriations might not be the only financial resource available to federal courts. If they’ve collected fines from other proceedings, perhaps they could divert that money into enforcing a contempt order.

The other exception is in the language itself and is more structural. It might have been intended as a clever way to let the Trump administration’s lawyers play both sides of the street (although I think it fails even in that). The language exempts from its coverage court orders in which courts have issued a security bond. This means the shrunken contempt authority still conceded to the courts could still operate across a range of cases the Trump administration is less interested in defanging. As Prof. Bray notes, courts “almost never” require security “when a suit is brought against a government defendant.”

That might not work for long; aware of the provision, courts could start imposing bonds, perhaps token ones of $1, when a new order issues against a federal agency as defendant. But the wider problem is that bonds are typically employed only in court orders of the more short-term variety — temporary restraining orders and preliminary injunctions — and seldom if ever in permanent injunctions. The effect of the language would thus be to gut enforceability of existing permanent injunctions — including those obtained by every previous U.S. Department of Justice acting in the capacity of plaintiff, the first Trump administration included, as well as countless other sorts of injunctions.

For example, it would gut enforcement of permanent injunctions (and many of shorter duration) that do not involve the government on either side. Bray cites as an example an existing injunction arising from a patent infringement lawsuit in which the competitor was enjoined from infringing someone’s valid patent 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 more intensively relied-on legal underpinnings of the private economy.

But back to the main intent of the provision: to a first approximation, it’s to spare the government any legal consequences for defying the courts, even when it does so in a continuing and belligerent way. The present tensions aside, it’s in some ways just as chilling to think the government could untie itself from hundreds, even thousands of previous permanent injunctions against violating rights that past courts have issued after finding that government agencies or law enforcers had committed past misbehavior and were likely to repeat it unless restrained. Talk about open season on rights!

When the government violates your rights, court orders — and the prospect of enforcing them via contempt — are often going to be your most practical hope for a speedy legal remedy. If the government comes around and decides to seize your house, your bank accounts, your business, or your firearms, as of right now, a federal judge can hear the evidence and tell the government, no, you took them wrongfully, and you have to give them back.

If this language passes into law, the judge could soon be rendered as powerless as you.