Judiciary
Proposal to limit courts’ contempt power, part of spending bill, is ‘terrible idea,’ Chemerinsky says
A budget bill by the U.S. House of Representatives contains a “stunning” provision that would limit federal courts’ ability to hold government officials and other litigants in contempt for disobeying their orders, according to law dean Erwin Chemerinsky. (Image from Shutterstock)
A budget bill by the U.S. House of Representatives contains a “stunning” provision that would limit federal courts’ ability to hold government officials and other litigants in contempt for disobeying their orders, according to Erwin Chemerinsky, the dean at the University of California at Berkeley School of Law.
The provision should be rejected as “a terrible idea,” wrote Chemerinsky, an ABA Journal contributor, at Just Security via Executive Functions.
The provision says federal courts can’t use appropriated funds to enforce a contempt citation for failing to comply with an injunction or temporary restraining order “if no security was given.”
The provision applies even to previously issued orders.
“The bill is stunning in its scope,” Chemerinsky wrote.
Security refers to a money bond that would cover potential costs and damages from a wrongly issued injunction, which is imposed pursuant to Rule 65(c) of the Federal Rules of Civil Procedure.
Despite the procedural rule, federal courts rarely require security in lawsuits against government defendants challenging actions as unconstitutional, according to Chemerinsky and Samuel Bray, a professor at the Notre Dame Law School, writing at Divided Argument.
“It always has been understood that courts can choose to set the bond at zero,” Chemerinsky observed.
Failing to set a bond before a temporary restraining order or a preliminary injunction is contrary to Rule 65(c), but it doesn’t invalidate the court order, Bray said. The spending bill is broader because it would also apply to final injunctions.
The House bill failed a committee vote Friday, and it’s unclear whether the bill will pass in its current form, the Associated Press reports. Also unclear is whether the provision would survive in the U.S. Senate and whether courts would strike it down.
The budget bill provision “appears meant to spare the federal government any legal consequences for even deliberate, continuing and belligerent defiance of court orders,” wrote Walter Olson, a senior fellow at the Cato Institute, for Cato at Liberty.
“If the district judges are no longer in a position to enforce contempt orders, why even bother appealing? The feds (and others, too) could just thumb their noses at them and go on their way,” Olson wrote.
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