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NWLC Slams Senate Judiciary for Including Measure to Effectively End Meaningful Legal Checks on Federal Government
Washington, DC – Last night, the Senate Judiciary Committee released its text for the “Big Beautiful Bill Act” that includes a measure to effectively eliminate the judiciary branch’s ability to promptly address lawless behavior by the federal government.
“If this measure stays in the bill, only a billionaire would be able to get prompt relief from the courts when this administration breaks the law,” said Emily Martin, chief program officer at the National Women’s Law Center. “This is not justice, it’s enabling an authoritarian power grab that would take away one of the last remaining checks on the Trump administration. It effectively ties the courts’ hands — even when the government’s actions are overtly lawless and incredibly harmful. This measure seeks to rob all of us of the ability to demand that the administration follow the law and abide by the Constitution.”
CURRENT LAW:
Any group or individual harmed by an action taken by the federal government can sue if they believe that action is lawless. If the court agrees that the claim is likely to succeed and that the action is likely to cause harm, it can issue a temporary restraining order or preliminary injunction. This temporarily halts the government’s actions while further legal proceedings proceed to reach final answers about the legality of the action – usually without any costs to the individual or group asserting their rights were violated.
These fuller legal proceedings can often take months, if not years, to complete, which means these temporary orders from the court are crucial in blocking illegal actions, preventing harm before it happens, and maintaining our country’s system of checks and balances.
Although the Trump administration has urged courts to require bonds as a condition of issuing a preliminary injunction against the government, that has not been a common practice by courts.
SENATE MEASURE:
The Senate’s measure changes this process by requiring that a bond – or payment from the group or individual challenging the government action – be paid up front in order to issue a preliminary injunction or temporary restraining order halting the wrongful federal government action.
This provision would prevent courts from requiring only a small bond since the Senate measure requires that the bond be “in an amount proper to pay the costs and damages sustained by the Federal Government.” The “cost and damages” would be calculated based on the expected amount lost by the government as a result of complying with the preliminary injunction or temporary restraining order, which the organization or individual suing the government would not get back if the challenged government action is eventually allowed by the court.
When significant illegal actions are challenged, the government would likely argue that the costs of blocking those actions would range from hundreds of millions to billions of dollars, which would make it impossible for anyone but the very wealthiest to obtain a temporary restraining order or preliminary injunction.
HOUSE MEASURE:
The House-passed budget bill included a similar measure to the Senate’s version, though with a few differences. The House measure would be retroactively applied, unlike the Senate version, and rather than preventing a preliminary injunction or temporary restraining order from being issued in the first place, it would limit the ability of courts to take action to enforce their preliminary injunctions and temporary retaining orders (such as holding government officials in contempt) unless a bond was paid.
For questions regarding this issue, please contact [email protected].
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