Justice might be blind, but the “Big Beautiful Bill” Republicans are pushing through Congress wants to make sure she’s also broke.

Tucked among a litany of new immigration ransom fees and some not-subtle environmental litigation jurisdiction stripping is Section 70302. A mere 57 words nestled in an 1100+ page draft — buried deeper than J.D. Vance in a chenille chesterfield — promises to fundamentally upend the legal landscape facing the Trump administration. Because Section 70302 purports to put a stop to all those federal courts enjoining the administration’s illegal or unconstitutional whims.

No court of the United States may 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 rule doesn’t actually bar courts from issuing injunctions. That’s a bridge too far for MAGA, as demonstrated during the Supreme Court’s birthright citizenship hearing where the conservative justices struggled to square the circle required to declare “injunctions are bad, unless issued by Matthew Kacsmaryk.” But Section 70302 of what’s supposed to be a budget bill performs an end run around the injunction problem: judges can still issue injunctions, the administration can just ignore them.

Rule 65(c) already exists, but it only requires courts to order parties to put up money in an amount required to pay costs and damages if the other side turns out to have been wrongfully enjoined. But, practically, judges aren’t making folks put up big bucks when the government isn’t going to really lose anything by just NOT shipping people illegally to El Salvador. Section 70302 shifts what’s required of the court, stripping the court of the power to actually enforce its injunctions if there’s not a bond.

And it’s retroactive because, obviously.

Despite the government’s pattern of disobeying court orders, judges have been reticent to hold the administration in contempt. But casually skimming the latest from these judges, that patience is clearly waning. There were 27 exclamation points in the order enjoining the Wilmer executive order and the administration hasn’t even had a chance to breach that one yet.

This can’t solve all of Trump’s preliminary injunction woes. Biglaw firms and elite institutions like Harvard will have no trouble coming up with a bond to cover whatever costs the government insists upon. But the same can’t necessarily be said for families trying to keep their loved ones from being carted off to South Sudan in the middle of the night. Or parents trying to protect their kid’s school from the DOE banning books about Harriet Tubman. Those folks might find themselves holding an injunction not worth the PACER pdf it’s printed on when the government treats the judge’s order as consequence-free performance art.

“Yeah, we saw the order, and we’re ignoring it,” they’ll say pointing out that the court doesn’t have the authority to enforce it beyond asking nicely. Too bad if you’re trying not to get vanished to a Salvadoran black site or fighting to keep the neighborhood from turning into strip-mined moonscapes. The only real cost to the DOJ in ignoring these orders will be forcing someone to head down to the courthouse to thumb their nose at the judge. And the Justice Department might not even have to do that — the might just send some Biglaw junior associate under their new pro bono secondment project.

Courts barely have leverage to compel the government to act with contempt power. Without it, they’re impotent.

As MSNBC notes:

The contempt power traces its origins to 14th-century England. In the Judiciary Act of 1789, Congress gave American courts the authority “to punish by fine or imprisonment … all contempts of authority in any cause or hearing before the same.” In 1873, the Supreme Court said, “The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.”

But being “deeply rooted in the nation’s history and tradition” only matters when it comes to taking rights away from women or ordering up more school shootings. When the current majority sees a cheat code for their political patron, it remains to be seen if they’d hew as closely to their sense of tradition.

Burying one of the most significant nerfs of federal judicial power in a spending bill longer than Harry Potter and the Deathly Hallows and at least as transphobic underscores the attempt to disrupt constitutional order under cover of darkness.

But that’s how flooding the zone works… fling as much awful as possible at the public and hope no one bothers to notice it all.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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