The hidden provision in the Big Ugly Bill that makes Trump king

Don’t let this happen

Friends,

I’ve been following with a mixture of dismay and disgust Trump’s One Big Ugly Bill, soon to emerge from the House. I’ll report back to you on it later this morning.

But I want to alert you to one detail inside it that’s especially alarming. With one stroke, it would allow Trump to crown himself king.

As you know, Trump has been trying to neuter the courts by ignoring them.

The Supreme Court has told Trump to “facilitate” the return of Kilmar Abrego Garcia, a legal resident of the United States whom even the Trump regime admits was erroneously sent to a brutal prison in El Salvador. Trump has essentially thumbed his nose at the court by doing nothing.

Lower federal courts have told him to stop deporting migrants without giving them a chance to know the charges against them and have the charges and evidence reviewed by a neutral judge or magistrate (the minimum of due process). Again, nothing.

Judge James Boasberg, chief judge of the federal district court for the District of Columbia, issued a temporary restraining order preventing the Trump regime from flying individuals to the prison in El Salvador without due process.

Judge Boasberg has found that the Trump regime has willfully disregarded his order.

What can the courts do in response to Trump’s open defiance of judges and justices?

The courts have one power to make their orders stick: holding federal officials in contempt and enforcing such contempt citations against them.

Enforcing a contempt citation means fining or jailing the Trump lawyers who argue before them and possibly invoking contempt all the way up the line to Trump.

Boasberg said that if Trump’s legal team does not give the dozens of Venezuelan men sent to the Salvadoran prison a chance to legally challenge their removal, he’ll begin contempt proceedings against the administration.

In a separate case, U.S. District Court Judge Paula Xinis has demanded that the Trump administration explain why it is not complying with the Supreme Court order to “facilitate” the release of Abrego Garcia.

Xinis questions whether the administration intends to comply with the order at all, citing a statement from U.S. Department of Homeland Security chief Kristi Noem that Abrego Garcia “will never be allowed to return to the United States.” According to Xinis, “That sounds to me like an admission. That’s about as clear as it can get.”

So what’s next? Will the Supreme Court and lower courts hold the administration in contempt and enforce contempt citations?

Not if the Big Ugly Bill is enacted with the following provision, now hidden in the bill:

“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….”

Translated: No federal court may enforce a contempt citation.

Obviously, courts need appropriated funds to do anything because Congress appropriates money to enable the courts to function. To require a security or bond to be given in civil proceedings seeking to stop alleged abuses by the federal government would effectively immunize such conduct from judicial review, because those seeking such court orders generally don’t have the resources to post a bond.

Hence, with a stroke, the provision removes the judiciary’s capacity to hold officials in contempt.

As U.C. Berkeley School of Law Dean and Distinguished Professor of Law Erwin Chemerinsky notes, this provision would eliminate any restraint on Trump.

“Without the contempt power, judicial orders are meaningless and can be ignored. There is no way to understand this except as a way to keep the Trump administration from being restrained when it violates the Constitution or otherwise breaks the law. …

“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.”

With this single provision, in other words, Trump will have crowned himself king. No Congress and no court could stop him. Even if a future Congress were to try to stop him, it could not do so without the power of the courts to enforce their hearings, investigations, subpoenas, and laws.

What can you do? To begin with, call your members of Congress and tell them not to pass Trump’s One Big Ugly Bill.

While you’re at, demand that they preserve the federal courts’ power to enforce their rulings by holding an administration in contempt. (The Capitol Hill switchboard number is 202-224-3121.)