In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
In the dead of a May night, the Republican-dominated House of Representatives passed a bill that attempts to defang federal courts and strip them of their powers to hold Trump administrators accountable for failing to follow court orders. orders.
This provision was buried in the middle of President Trump’s 1,100+ page Big Beautiful Bill that is now before the Senate.
This dangerous clause protects Trump officials from being held in contempt for disregarding previous court orders. This “No Contempt Clause” is a blatant GOP attempt to disempower and neuter federal court judges.
The provision says:
“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 pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.”
Its significance is generally being ignored by mainstream media. Unfortunately, we don’t hear much talk of it except in legal circles. But its impact is devastating.
I will explain this provision in understandable terms but first, let’s expose the legislative trick the GOP is trying here.
The BBB passed the House as a budget reconciliation bill — meaning it only takes a simple majority for passage in the House and the Senate.
Now that the bill is in the Senate, the Senate Parliamentarian must decide whether this No Contempt Clause meets the standard for budget reconciliation. Under Senate rules, only provisions that affect federal budgets and revenues are allowed in a reconciliation bill.
A budget reconciliation bill only needs 51 votes to pass the Senate, whereas a regular bill would take 60 votes. The GOP has only a razor-thin majority of six votes, so the Parliamentarian’s ruling is a big deal.
GOP supporters say that the U.S. Marshal’s office, which is under the auspices of the Department of Justice, would need to effectuate any court order of contempt and therefore this is a budget “spending” matter. Most commentators agree that it’s a stretch to think that courts spending federal dollars to enforce court orders would fit squarely under the definition of reconciliation. But Democrats are not relying on a favorable ruling.
What does the No Contempt Clause mean?
Rule 65 of the Federal Rules of Civil Procedure says that a court should ask a party seeking a temporary restraining order or injunction to provide some type of bond or security. This is to ensure that there is money to pay the other party for damages if the injunction is wrongfully ordered.
However, judges rarely (if every) use this section of Rule 65 when parties are suing the government, especially if the party is claiming that a governmental law or action is unconstitutional.
So far, all the restraining orders and injunctions issued by courts against Trump’s executive orders have been issued without bonds and therefore, would be unenforceable.
The No Contempt Clause “serves no purpose but to weaken the power of the federal courts,” noted constitutional scholar Erwin Chemerinsky told Newsweek.
“The Supreme Court has long recognized that the contempt power is integral to the authority of the federal courts,” said Chermerinsky, dean of the University of California Berkeley School of Law. “Without the ability to enforce judicial orders, they are rendered mere advisory opinions which parties are free to disregard.”
That’s just exactly what Trump and his GOP followers want.
The No Contempt Clause applies not only to future orders, but to all past orders issued by the courts. Because the clause has no time limit, it would potentially make thousands of previous court orders — including civil rights actions — unenforceable, plummeting the entire federal court system into chaos.
A possible work around
If this provision passes, federal judges will have a possible work-around. But it would be a mess.
Rule 65 does not say how much bond or security a judge must require before issuing a temporary restraining order or an injunction. So a judge could technically set bond at $1.
The new orders with the low bonds would be prospective. I doubt that they could be retrospectively ordered. That means the bill would wipe out the enforceability of previous rulings that had no bond ordered, and Trump’s administrators could not be held accountable for allegedly violating previous court orders — such as ones directing the government to stop deporting immigrants to the CECOT prison in El Salvador without due process.
There are other important decisions that could be reissued with low bonds, but past governmental behaviors contrary to those orders would be exempt from contempt.
If the No Contempt Clause remains part of the final bill, legal action could be brought about its constitutionality. But that would set up a constitutional nightmare over the separation of powers.
Opposition
Some interest groups and legal scholars are raising public awareness of the provision, but there does not appear to be an all-out public outcry to erase this provision from Senate consideration.
Two powerful organizations so far have remained quiet.
U. S. Supreme Court Chief Justice John Roberts has not spoken out against this provision on behalf of the Supreme Court or federal courts. He has complained about attacks on federal judges, but not about legislation that would strip the federal courts and judges of their powers.
To date, the Judicial Conference of the United States also has been silent about this provision. The Judicial Conference is chaired by the Chief Justice and comprises federal judges from across the country. It’s the chief policymaking body of the federal judiciary and often comments about potential acts of Congress.
The American Bar Association has not specifically spoken about the no contempt clause but on March 26, 2025 issued a statement supporting the rule of law in late March.
What’s next?
We await Senate action on the BBB and see what if any changes will be made to the House version. We will be watching whether this provision survives or whether it will be edited out by more reasonable Senators.
Once approved, the Senate’s version of the bill will need to go back to the House for approval. A conference committee may be formed to resolve differences between the House and the Senate bills.
Trump wants the bill passed by July 4, so there is pressure on GOP legislators to move quickly.
Meanwhile, the news media and other groups should be spotlighting this provision and its seriousness.
As Americans, we all should be concerned.
This one clause tucked away in the bulk of the 1,100 + BBB could cause major chaos in the federal courts, allow Trump violators of court orders to skate free, and be a major blow to our democracy.
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