Rigging the economy was never enough
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Since before reaching the Senate, Elizabeth Warren (D-Mass.) said loudly that our economic system is rigged. By the rich. Sen. Bernie Sanders (D-Vt.) concurs. You thought the people doing the rigging would stop there? Oh, child.
Democracy Docket describes the newest rigging succinctly (emphasis mine):
The multitrillion-dollar reconciliation bill the House GOP passed Thursday includes a provision that would, if it becomes law, curtail when courts can force parties to comply with their orders.
“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 pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section,” the provision reads.
The measure would require that judges collect a bond from all parties seeking a temporary restraining order or a preliminary injunction, otherwise the resulting orders will be unenforceable.
Currently, judges have the ability to issue injunctive bonds to protect the target of the court’s order from potential harm if the order is later found to have been wrongfully issued. But they often don’t require such bonds in lawsuits against the government, as plaintiffs may have limited resources and the government likely won’t be substantially injured by orders.
On its face, the change appears quite small. But as Erwin Chemerinsky, dean of the UC Berkeley School of Law, recently noted, the provision would render hundreds and hundreds of other court orders in cases unrelated to Trump unenforceable.
This MAGA tweak does not just apply to court orders going forward. Chemerinsky adds, “It would apply to all temporary restraining orders, preliminary injunctions, and even permanent injunctions ever issued. By its terms, it applies to court orders ‘issued prior to, on, or subsequent’ to its adoption.”
To review, I’ve used this example here for over a decade. To wit:
We’re dealing with people who would sell you the air you breathe if they could control how it gets to your nose. And if you cannot afford to buy their air, well, you should have worked harder, planned better, and saved more.
Over the top? Hyperbolic?
I referenced the example again last Friday after Donald Trump’s solicitor general, D. John Sauer, argued before SCOTUS that nationwide injunctions issued against the Trump administration should be impermissible. It’s one thing for plaintiffs whose constitutional rights Trump violated to sue and win an injunction in District Court. It’s another for a District Court judge to issue a nationwide injunction that protects similarly situated and threatened Americans who didn’t sue, Sauer argued. Those freeloaders should have to bring their own cases, by the thousands if necessary. And until they do, and win in their cases, Trump should be able to violate their constitutional rights.
Americans, Sauer implied on Trump’s behalf, are entitled to just as much protection of their constitutional rights as they can afford to defend in court. And if you can’t afford to sue to defend your constitutional rights, well, you should have worked harder, planned better, and saved more.
Now, MAGA Republicans want to gut even protections won in past cases. Your court victories are meaningless. Chemerinsky:
Because federal courts rarely have required plaintiffs to post bonds, it would mean that hundreds and hundreds of court orders – in cases ranging from antitrust to protection of private tax information, to safeguarding the social security administration, to school desegregation to police reform – would be rendered unenforceable. Even when the government had been found to violate the Constitution, nothing could be done to enforce the injunctions against it. In fact, the greatest effect of adopting the provision would be to make countless existing judicial orders unenforceable. If enacted, judges will be able to set the bond at $1 so it can be easily met. But all existing judicial orders where no bond was required would become unenforceable.
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.
Just what an aspiring dictator might want while barely keeping up democratic appearances. You should have worked harder, planned better, and been born rich.
Even Walter Olson, a senior fellow at the Cato Institute, is stunned. He writes that the bill “appears meant to spare the federal government any legal consequences for even deliberate, continuing, and belligerent defiance of court orders.”
Olson continues, “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.” Adoption of this change would mean “open season on rights!”
The rich rigging the economy was just the beginning. Rigging elections was systematic. “Surgical” even. Now they are coming for the courts and your constitutional rights.
This provision still has to survive Senate amendments, so be sure to ask your senators to strip it out before voting the thing down.
Of course if signed into law, the provision will be challenged in court. Trump will lose. He will appeal. And appeal again, all the way to SCOTUS. At this point, it would be foolish to predict what the outcome of that case would be. By then, Trump’s grip on the reins of power may have tightened through threats, arrests, and intimidation to the point that a majority of justices may fear crossing him. But even if SCOTUS does slap down this encroachment on judicial powers, Trump and his henchmen will be free to violate your rights with abandon.
God bless America.
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