Buried in the House version of the most Trumpian-named omnibus reconciliation bill ever, the “Big Beautiful Bill,” was that dubious nugget that would preclude courts from holding the government in contempt for violating court orders. The Senate was having nothing of it, and seized the opportunity to take the House’s ham-handed effort and . . . make it worse.

As Sam Bray explains at Divided Argument, the House version went after the courts’ authority to hold the government in contempt for violating a court injunction, making it replete with constitutional issues as well as having a practical flaw that would allow judges to fix the required bond at $1, thus defeating the effort and allowing the president to violate the Constitution with impunity.

The Senate, on the other hand, took a very different approach.

SEC. 203. RESTRICTION ON ENFORCEMENT.

No court of the United States may issue a preliminary injunction or temporary restraining order against the Federal Government (other than a preliminary injunction or temporary restraining order issued in a case proceeding under title 11, United States Code) if no security is given, in an amount proper to pay the costs and damages sustained by the Federal Government, when the injunction or order is issued pursuant to rule 65(c) of the Federal Rules of Civil Procedure after the date of enactment of this Act. No court may consider any factor other than the value of the costs and damages sustained when making its determination of the proper value of such security, and that determination shall be appealable upon issuance of the preliminary injunction or temporary restraining order under an abuse of discretion standard.

Rather than require bond for contempt, the Senate would put the cart before the horse and require bond before issuance of a TRO or restraining order. Instead of fixing bond at some random amount, the Senate would require bond be fixed “in an amount proper to pay the costs and damages sustained” by the Feds, which could easily be millions, or at least argued to be millions. And if the court tried to downplay the costs, the bond amount would be separately appealable.

As Bray explains, this is a very different animal from the House version.

But the Senate provision is far more effective at increasing the use of injunction bonds. That is so because of six changes:

1. A shift from regulating all federal court injunctions to regulating only preliminary injunctions and temporary restraining orders. This makes obvious sense, because injunction bonds are simply not used for final injunctions.1
2. A shift from regulating injunctions against all parties to regulating only injunctions against the federal government. The clearest pattern of non-compliance with Federal Rule of Civil Procedure 65(c)’s injunction bond requirement is in suits against government defendants (see Preliminary Injunction Realism), so this narrower focus makes sense.
3. A shift from restricting enforcement of injunctions to requiring conditions for the grant of injunctions. The former approach (in the House bill) was a likely unconstitutional intrusion on core judicial power, while the latter approach (in the Senate bill) is more squarely within the power of Congress to regulate the jurisdiction of the federal courts.
4. A shift from retroactive immunization to a prospective rule. This shift, too, avoids a constitutional problem and is more consistent with the rule of law.
5. A shift from a rule that is easily evadable—an on-off effect for the provision based on whether there is any injunction bond, which made the House version easily evadable with a $1 bond—to one that is meant to scale the required bond amount with the cost of the interlocutory injunction to the government.
6. An explicit carveout for bankruptcy.

Bray calls them improvements, and perhaps they are from the standpoint of effectiveness in accomplishing their goal and not violating the Constitution. An additional point, I might add, is that this change may allow the section to survive the Senate parliamentarian, since it’s a reconciliation bill and can only include things that impact government finances. As this deals with government costs and damages, it may overcome that requirement.

But this bill will apply not only to Trump’s failure to abide the Constitution and law, but all future presidents as well. Consider Biden’s cancellation of student debt, a flagrant ultra vires act. Sorry, kids, but the courts can’t stop Biden any more than they can stop Trump if courts can’t issue restraining orders.

Is that really what anybody thinks is a good idea? Do you really want a government where the president can engage in any whimsical act and the courts can’t stop him? Granted, if the TRO is sought by a coalition of states, they may be capable of covering enormously expensive bonds, but what about the Institute of Justice or FIRE, or even the ACLU, which would be incapable of covering the bond? Even states would be hard-pressed to cover bonds in ten cases, a hundred cases, when someone like Trump issues hundreds of Executive Orders, all of which violate the Constitution.

Many people don’t care if the president violates the law or Constitution as long as they like the outcome. Many find something wrong with a single district judge issuing a TRO that prevents the president from what they perceive as doing his job. But then, what about when the boot on the neck is on the other foot? Will the fix you like when it’s your president in power be as great an idea when it’s not?

*Tuesday Talk rules apply.