The Sneaky Provision in the Budget Bill that gives the Administration free reign ...
the devil is in the details ...
There is a lot to write about the ‘big beautiful bill’ - and the writer in me would start with the idiotic name the ‘One Big Beautiful Bill Act’ (which on the best of days contains a redundancy that curls the hair) if we had the luxury of talking about language. I encourage everyone to do something many of your elected leaders have not - actually read the bill.
I could write about the fact President Trump pledged just two months ago to balance the federal budget but now pushed through the Trump Bill which adds 5 trillion dollars to the National debt (around 3.5 trillion dollars of it without a dime of offset in cuts) - a bait and switch that would have seem like a betrayal to fiscal conservatives and Republicans if we were not in the twilight zone.
I could write about increases to the Child Tax Credit (from $2,000 to $2,500), increases accompanied by dramatically lower income limitations meaning many families can no longer claim the credit. I could throw in the combined nativist/moralizing provision that the child tax credit is unavailable for children who have one parent without a social security number which seems particularly diabolical.
I could write about how the Trump Bill ‘no tax on tips’ provision actually does not really benefit those who are expecting it to make a difference for them and might end up benefitting those who have never had a traditional ‘tip-based’ job.
And of course, I could write about $400,000 tax breaks to individuals earning over $4,000,000 per year and the prospect of 12 million people losing health insurance and point out the lack of basic humanity, the greed, and the intentional move to lie to those the Right relied on in the election (proven by the fact that many of the things that will strip MAGA voters of health care or work to close hospitals and nursing homes in their communities are timed to occur after the next elections or under the next President).
I could write about those provisions in the Bill and many more like them, but instead I want to briefly write about one provision that many might miss. The devil is truly in the details and eyes are usually drawn to numbers and tax credits because they are seen as having a direct impact on our lives. On either side of the debate, we understand what tax breaks for the wealthy, increased benefits for the poor (in an alternate reality), cancelled tax credits, and the sale of public lands mean. We get it. But, it is the provisions that don’t jump out that usually end up having the biggest impact - and there is a doozy in this bill.
Here it is, right on the heels of my post about injunctions …
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.
Many reading the bill have no idea what the Federal Rules of Civil Procedure are, let alone Rule 65(c). Let me try to explain -
An injunction, as I posted about earlier, is defined by the Oxford Dictionary as, “a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act, e.g., to make restitution to an injured party.”
So, if your neighbor is cutting down the trees on your side of the property line and you ask a court to make them stop cutting down your trees, you are asking the court for an injunction. That can be an injunction that comes along with a decision after a trial (like an order that your employer not discriminate against you in the future), or; where the neighbor needs to be told to not cut down the trees until things get sorted out, a ‘preliminary’ injunction. As I wrote last week, to get a preliminary injunction is a big deal because a court is telling someone that they have to take action before anyone has gotten a chance to hear the full story by each side and make a decision. The reasoning is that if the trees are cut down, they can’t easily be replaced (maybe they are very old trees) and your interest in hitting pause on the cutting operation likely outweighs whatever interest your neighbor might have in getting a better view of the ocean. If your neighbor wins, the reasoning goes, what have they really lost? Maybe a few months of their better view? If you win and the trees have already been removed, there is no getting them back.
Lawsuits are governed by Rules that attorneys follow (or else). The Rules set out deadlines, required contents of filings, and even details as seemingly minor as the font size of footnotes. Each state has its own set of Rules that apply to its courts and localities within States might have Local Rules that spell out unique requirements for their county or city.
In Federal Court, those Rules are called the Federal Rules of Civil Procedure. For criminal cases, there are the Federal Rules of Criminal Procedure. For cases that are appealed after one side loses, there are the Federal Rules of Appellate Procedure.
Federal Rules of Civil Procedure 65 deals with injunctions and restraining orders, providing the Rules that Courts are required to follow when issuing either. Part (c) of that Rule adds a requirement regarding ‘security:’
(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.
You might read that and wonder ‘what?’ Understandable. Many attorneys don’t understand the provision even though it seems you should get a decipher ring after paying 110K for law school. This seems a ridiculous example, but say that you are Jack and have a bag of magic beans and I hear that you are going to sell them to Jill but you have already signed a contract to sell them to me. Let’s say that I performed work for you in exchange for the beans. I go to court and ask for a preliminary injunction to prevent you from selling the beans to Jill until we can have the court hear our case. The court is inclined to grant injunction because I can show that I will suffer irreparable harm if it doesn’t (there are no other magic beans and if the court allows you to sell them, I can’t get get any others and you really can’t put a value on them).
Rule 65(c) says that before the court can grant the injunction, it has to get ‘security’ from me. This is an amount to cover your damages if, after the court hears our case, the court determines that I was wrong and I wasn’t entitled to the beans. What might your damages be?, perhaps Jill is paying a million dollars for the beans and what if something happens to her or she decides that she really doesn’t need any magic beans while we are arguing over whether or not I should get the beans.
So if you can show that you will could be really damaged if the court issues the injunction and you are proven correct - I should have to put up that amount of your damage as a ‘bond’ so that you will be made whole if it turns out you were right.
A key phrase in Rule 65(c), though, is “that the court considers proper.” There are many instances where courts determine that the amount of security that should be paid is zero. Those cases might be ones where there is no ascertainable damage value or where an injunction is sought against the government for a constitutional issue. Courts routinely do not require plaintiffs to put up security if their suit is against the government over a constitutional issue (it is difficult for the government, which moves sluggishly at its best, to show they will have damage if they are not able to do whatever they are seeking to do).
So what does the Big Bloated Bill do? Well, it says that if no amount of security has been provided (in those constitutional cases, or any others, where the court determined the proper amount was zero), the court cannot really do anything if the government (or anyone else) simply ignores the injunction. The one power the court has to enforce injunctions is issue contempt citations and enforce them — and Trump’s bill says that courts cannot enforce contempt citations if no security was given when the injunction was ordered.
On the surface, there would seem to be an easy fix for courts, simply always have Plaintiffs turn over a nominal amount of security - so that in the constitutional realm where courts routinely determine the proper amount of security is $0, they would just set the minimum at $1 and carry on. No big deal, right?
It would be no big deal and simply a matter of technicalities if not for the part of Trump’s bill that states, “if no security was given when the injunction or order was issued.” Courts can’t go back and recalculate the proper amount of security. In cases where injunctions were ordered in Trump Administration cases since January 21, 2025 - where Plaintiffs brought suit alleging serious violations of constitutional rights - courts determined the proper amount of security was zero. In those cases, where Plaintiffs met the heavy burden of showing that they would be irreparably harmed if there was no injunction and it was likely that they would win their cases against the Administration, no security was was given by Plaintiffs.
So, in all of those cases, where courts ordered that the Administration had to stop violating individual rights - whether it be because there needed to be due process before sending individuals (in a lawful immigration status or not) to serve indefinite prison terms in foreign prisons, because taking action against law firms was a violation of the freedom of speech and the Bill of Rights’ guarantee to counsel, etc., the Trump budget bill would strip courts of any power to punish the Administration if it chose to ignore the court orders.
But cue your Ron Popeil or Billy Mays sound clips … because WAIT THERE’S MORE. This doesn’t just affect the injunctions issued against the Trump Administration in the past four months. The budget bill provision stripping courts of enforcement powers and giving the Administration free reign to ignore court orders would apply to all injunctions that have issued without a requirement for security in the past. This is not just King Don upset at being told no and making sure that courts can’t punish him or his minions for breaking the law, this is a calculated tactic by some of the worst actors to green-light ignoring court orders that they have despised for a long time.
The Trump Bill doesn’t say that the new provision only applies to preliminary injunctions - those that courts have issued that apply to the brief period between when a lawsuit is filed and when it can be decided. The provision applies to all injunctions and there are currently countless injunctions in effect where after trials courts have ordered that the government stop engaging in certain activity - whether it be discriminating in administering a government grant program or violating rights in enforcing (or over-enforcing) the law or surveilling Americans. Injunctions are a routine part of court orders at the end of lawsuits. Courts award Plaintiffs something for their damages and then tell the government that it has to stop breaking the law. The Trump Bill renders all of those injunctions, ones that tend to stop behavior Democrats dislike and ones that tend to stop behavior Republicans dislike in equal measure, meaningless. The Trump Bill gives a hall pass for simply ignoring courts, and while they might currently be the ones planning to ignore the courts, the wheel will turn, and it will be free reign for a future not-yet-imagined administration to do the same.
That is scary. And while many of our neighbors wear red-lensed glasses which simply read any criticism of the Administration as ‘TDS! (and the Nailed It meme),’ there are others that have glasses with less red in their lenses and that is who you need to share the Big Beautiful Bill with. Share provisions like this - that upend our legal system and allow lawlessness. Share it and explain that it will apply to those court orders they like too - the ones that protect their AR-15’s or punish the people that illustrate kids’ books using too much pink. Let them know that provisions like this, and countless more (how about the fact that tax breaks will go into effect this year, but pushing the pain of being kicked off insurance or the Medicaid cuts that will close local hospitals until after the next election - so that MAGA supporters will vote before they know the true cost of their MAGA support) are not just the acts of the creeps they are ok with. Let them know they are pawns in a long-running wet dream of creeps they cannot begin to imagine, people that have planned out the end to our system of law and the administrative state and have waited for such a time as this — when people are simply so fed up with being taken advantage by politicians and being spoken down to by the ‘elite’ that they will simply turn a blind eye to the details.
We all get that. None of us are strangers to those pulling the real strings from stage left. Those puppeteers gave us the Iraq and Afghanistan Wars - but those string-pullers relied on fear and anger to try to spread their idea of the American Ideal abroad. We saw how disastrous that turned out. Our current puppeteers are using the vengeances of an old man, and elected leaders so blinded by their desire for power and office that they will not challenge him, to not just alter how we spread our system around the world but to actually scuttle the system itself.
For many, the issues of taxes and healthcare in the Trump Bill are huge … and they are, but they are largely age-old arguments about taxes and our social safety net. There are other parts of the Trump Bill that are not about taxing and spending but instead go to the heart of how our system is designed to work.
Many will be hurt (and people will lose their lives) because of traditional budget decisions, and while the damage will not be able to be undone, the budget decisions are reversible. Those decisions being undone depends on our system of law and elected government working. Sneaky provisions - like this one dealing with enforcement of contempt citations - are efforts to make sure that system of law and elected government cannot work to reverse decisions that could turn out to be disastrous (whether economically or as they relate to the health of our most vulnerable populations).