Republicans Snuck a Provision Into Their Megabill That Would Let Trump Defy the Courts

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This week saw yet another federal judge run out of patience when the Trump administration attempted to deport a group of migrants to South Sudan—in express violation of a court order prohibiting them from doing so without notice and an opportunity to contest their removal. At a series of hearings, Judge Brian E. Murphy furiously rebuked the administration for ignoring his instructions, evading his questions, and generally conducting immigration policy as though it is the world’s biggest game of whack-a-mole. Murphy also raised the prospect of holding officials in contempt for defying his orders. Less than a day after he did so, however, House Republicans passed a bill that would gut federal judges’ authority to enforce contempt orders—an obvious effort to stop the judiciary from punishing administration officials who disobey the courts.

On this week’s Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the government’s latest flouting of a court order as well as the GOP’s effort to insulate defiant officials from consequence. A preview of their conversation, below, has been edited for length and clarity.

Dahlia Lithwick: Some of the most stunning news of the week involved this hearing in a federal court about deportation to South Sudan. There were so many layers, but it seems to include the overt violation of a court order, an insane performance by Trump’s Justice Department, and the renditioning of people into a country that is deemed too dangerous for Americans to travel to. What exactly did the Trump administration try to do this week?

Mark Joseph Stern: The Trump administration tried to deport about half a dozen immigrants to South Sudan, a country so riven by a violent civil war that the U.S. government has warned travelers not to even step foot there. And none of these individuals were even from South Sudan—it was a so-called third country, not their country of origin. The federal government said: We know it’s too dangerous for American travelers, but it’s not too dangerous to serve as our dumping ground for immigrants who we don’t want in America anymore. And immigration officials reportedly gave these immigrants less than 24 hours’ notice before putting them on this plane headed to Africa.

The problem here is that Judge Brian Murphy, a Joe Biden appointee, had already issued an injunction prohibiting the government from expelling anybody to a third country without giving them a meaningful opportunity to object on the grounds that they may face torture or persecution there. But the government ignored that order and put these migrants on a plane to South Sudan, forcing their lawyers to rush to court and plead with Murphy to enforce his injunction while their clients were already in the air to Africa.

And it sounds like Judge Murphy was not here for it—he was willing to say the quiet parts out loud about what was going on here without hesitating to call out the DOJ.

Right. Murphy held an emergency hearing and ordered the government to actually abide by his injunction, in part by maintaining custody over the men who were on the plane rather than dumping them in South Sudan and turning around. That was a smart move since we now know the government’s position is that once individuals have been dumped off in a third country, they are outside U.S. custody and there’s nothing the United States can do to get them back. Murphy also clarified that his injunction requires the government to give individuals at least 10 days’ notice to raise objections to their deportations to third countries.

During this hearing, Justice Department lawyers actually argued that 24 hours was enough notice to comply with due process before sending immigrants to a war-torn country that they’ve never set foot in. That was a rather brazen and brassy claim for Justice Department lawyers to make less than one week after the Supreme Court held that 24 hours’ notice was not nearly enough time to afford to Venezuelan migrants who faced deportation to El Salvador. Judge Murphy also speculated that immigration officials had acted with criminal contempt in defying his order. He has not taken any action to hold them in contempt yet, but those proceedings seem to be down the road.

During the hearing, Joshua J. Friedman quoted Judge Murphy saying that the government believes it had complied with his orders because it didn’t hear the immigrants yelling at their jailers saying they’re afraid of going to South Sudan. I guess that’s the only signal the DOJ would have accepted that they don’t want to be renditioned there.

There’s now the usual fog of speculation about whether Judge Murphy will actually hold anyone in contempt. But that leads us to something that Republicans smuggled into their big, crappy, midnight bill: a provision that would prevent judges enforcing contempt orders that seems aimed straight at the heart of these district courts that are considering contempt against Trump officials. Is this a real threat? Or just an attempt to chill district courts from doing their job?

It is a huge threat. This provision, if enacted into law, would prevent courts from enforcing contempt orders when the courts did not force the plaintiffs to post bond. But as Erwin Chemerinsky, Samuel Bray, and other experts have explained, courts do not traditionally require plaintiffs to post bond when they’re suing the government, especially over violations of civil rights and constitutional law. There is a long-standing tradition that most federal courts don’t force plaintiffs to post bond in those cases. And so, right now, there are thousands of injunctions that would be rendered totally unenforceable if this provision passes into law. And they are disproportionately injunctions against the federal government prohibiting violations of civil rights and constitutional liberties. If this provision passes into law, then none of those could be enforced, because in none of these cases did the district court require the plaintiffs to post bond.

That would mean that Judge James Boasberg could not enforce a contempt order against the government. It would mean that Judge Paula Xinis, who is overseeing the Abrego Garcia case, could not enforce a contempt order. It would mean that Judge Murphy, in this very case, could not enforce contempt against officials who defied him. It would mean that basically all of the federal judges who have ruled against the Trump administration so far would not be able to enforce contempt orders if the government defies their injunctions, because they did not require the plaintiffs to post bond.

Now, here’s the weird thing: The courts could get around this by just directing plaintiffs to post some nominal bond, maybe even $1. But there is no way for the courts to go back in time and do that in many of these other cases. And this provision applies to a bunch of long-standing injunctions that have been in effect for years, including desegregation orders in the South. These are ongoing, permanent injunctions that the government, if this provision passes, could simply defy. And then if a court tries to hold officials in contempt, the government could say: Too bad, the plaintiffs didn’t post bond, so we get out of contempt for free. This is a recipe to let government officials get away with defying many, many injunctions—not just those against Trump.

Mark, given how squirrely this all sounds, what are the chances of it passing into law?

The problem for Republicans is that this provision has been smuggled into the reconciliation bill. And a Democratic aide to the Senate Judiciary Committee has told me that Democrats are planning to challenge it as a violation of the Byrd rule, meaning it can’t be passed by a simple majority—it must be subject to the filibuster. And I think they’ll convince the Senate parliamentarian that it must be stripped out, because it has no clear impact on the budget. So that’s the note of optimism.

The note of pessimism, though, is that Senate Republicans just overruled the Senate parliamentarian this past week to repeal California’s vehicle emission standards. It is certainly not inconceivable that they would overrule the parliamentarian again, now that they’ve crossed this Rubicon, to enact any part of the reconciliation bill with a simple majority. They’ve already gone nuclear to kill clean air standards—why not do it to hobble federal courts ruling against Trump, too?

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