Democrats in the Senate are preparing to fight an attempt by Republicans to limit federal courts’ authority to block abuses of power by the Trump administration.  

The looming showdown over the judiciary’s power to issue contempt orders stems from a single sentence tucked into the thousand-page budget bill, which passed the House of Representatives by a single vote on Thursday.

“This is a slap in the face to the concept of separation of powers,” said a spokesman for Senator Chris Coons (D-Del.).

If enacted, the provision — found on page 544 out of 1,082 — would restrict how federal judges can hold government officials or other litigants in contempt if they defy court-issued injunctions and restraining orders. Contempt is the primary enforcement mechanism available to courts, and in cases around the country judges have weighed whether to issue contempt findings against President Donald Trump’s deputies.

In April, one judge found there was probable cause for contempt after the administration transported dozens of Venezuelan men to a notorious prison in El Salvador despite an order temporarily blocking such deportations — a ruling that’s paused while a federal appellate court considers the issue.

Contempt is also on the table against White House officials in the fight to return Kilmar Abrego Garcia from El Salvador, and just this week another judge floated possible contempt charges over deportation flights to South Sudan.

Frustrated at such judges’ gall and the proliferation of injunctions against the Trump administration’s actions on everything from immigration to transgender rights to federal staffing, Republicans now hope to use the budget bill to curb judicial power.

The provision passed by the House would prohibit judges from enforcing contempt orders unless they also require the litigants that sought the injunction in the first place to put up a security bond. Essentially this means requiring plaintiffs — whether individuals like Abrego Garcia or the unions, civil liberties advocates and watchdog groups that have filed suits challenging broader policies — to put down money in case an injunction is later found to be “wrongful.”

“Republicans are once again seeking to twist the rules to avoid accountability and advance their overtly political interests by attempting to shut down federal courts’ enforcement mechanism.”

“It would make no sense to require the plaintiffs in these suits to pay bonds to be able to have access to the federal courts,” explained Erwin Chemerinsky, dean of U.C. Berkeley School of Law, “and insisting on it would immunize unconstitutional government conduct from judicial review.” The relevant federal rule about security bonds and injunctions is generally relaxed when the lawsuit alleges illegal conduct by the government.  

As written, the provision would be retroactive, which Chemerinsky warned would mean “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.” 

Chemerinsky considers the provision in the budget bill fundamentally “anti-democratic” and also “unconstitutional as violating separation of powers.”

Before the bill went to the House floor, Democrats tried to take the provision out, but the Rules Committee voted along party lines to keep it.

Democrats on the Senate Judiciary Committee see the contempt provision as mere pretense to dilute judges’ authority, and they vowed to fight to remove it from the budget bill.   

“As written, it would authorize outright defiance of every single injunction in effect across the country – not just nationwide injunctions against the Trump administration,” Sen. Sheldon Whitehouse (D-R.I.) said in an emailed statement.

“Republicans are once again seeking to twist the rules to avoid accountability and advance their overtly political interests by attempting to shut down federal courts’ enforcement mechanism,” said Sen. Alex Padilla (D-Calif.) in an emailed statement.

“This move is a disingenuous and dangerous effort to shield the Trump administration from legal challenges and consequences by attempting to make court orders unenforceable,” wrote Sen. Richard Blumenthal (D-Conn.) by email. “I’ll fight against this Republican power grab bent on destroying our democracy.”

Like many provisions in the bill sent to the Senate this week, the contempt restriction has no apparent link to fiscal matters, which makes it vulnerable to procedural challenge. Under the so-called “Byrd rule,” named for the late Sen. Robert Byrd of West Virginia, Congress cannot use the budget reconciliation mechanism to legislate about matters that are “extraneous” to the budget.

The contempt provision “clearly violates the Byrd rule,” Whitehouse wrote in his statement, and a Democratic committee aide similarly told The Intercept that there was a plan in the works “to challenge the provision as a violation of the Byrd rule.”

“This is about telling courts what to do, not about the budget,” said Bobby Kogan, senior director for federal budget policy at the Center for American Progress, who has studied reconciliation and the Byrd rule, which is applied by the Senate’s parliamentarian. “Very unlikely to make it past Byrd.”

A spokesman for Republican Chuck Grassley of Iowa, who chairs the Senate Judiciary Committee, implicitly conceded that the provision faces significant parliamentary hurdles in its current form.

“Chairman Grassley is considering approaches to address universal injunctions through reconciliation that comply with the Senate’s Byrd rule,” Grassley’s press secretary, David Bader, wrote in an email to The Intercept on Friday.

The post GOP Budget Would Make It Even Harder to Hold Trump Administration in Contempt appeared first on The Intercept.

This post was originally published on The Intercept.