Were I a lawyer
… I might know what to think of terrifying essays like this one:
… which discusses the following measure in the One Big Beautiful Bill Act (OBBBA):
Questions:
(1) Could judges strike down this measure as unconstitutional?
(2) If judges were to do this – and here my ignorance really shows – would they thereby strike down all of OBBBA?
Put differently, does a law behave like a logical conjunction that is shown to be false (invalid) if even a even single part is shown to be false (invalid)? Or might a law with some invalidated parts remain valid in its other parts? This is something people oughta know, but I don’t know it.
(3) Last question. If judges strike down a law that restricts judges’ authority to hold people in contempt, then they get to continue holding people in contempt. Right? Legally, they’ve “got the drop” on that law, right?
“A Hidden Measure in the Republican Budget Bill Would Crown Trump King”
(Robert Reich, in The Guardian)
(Robert Reich, in The Guardian)
… which discusses the following measure in the One Big Beautiful Bill Act (OBBBA):
SEC. 70302. RESTRICTION OF FUNDS.“Translated,” Reich tells us, the measure ensures that “no federal court may enforce a contempt citation”:
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.
The measure would make most existing injunctions – in antitrust cases, police reform cases, school desegregation cases and others – unenforceable.The House approved OBBBA by one vote. Suppose that after debating, revising, etc., the Senate and the House were to turn OBBBA – or some version of OBBBA containing this measure – into law.
Its only purpose is to weaken the power of the federal courts.
As Erwin Chemerinsky, UC Berkeley School of Law dean and distinguished professor of law, notes, this provision would eliminate any restraint on Trump.
“Without the contempt power, judicial orders are meaningless and can be ignored. There is no way to understand this except as a way to keep the Trump administration from being restrained when it violates the Constitution or otherwise breaks the law …
“This would be a stunning restriction on the power of the federal courts. The Supreme Court has long recognized that the contempt power is integral to the authority of the federal courts. Without the ability to enforce judicial orders, they are rendered mere advisory opinions which parties are free to disregard.”
In other words, with this single measure, Trump will have crowned himself king.
If it is enacted, no Congress and no court could stop him. Even if a future Congress were to try, it could not do so without the power of the courts to enforce their hearings, investigations, subpoenas and laws.
Questions:
(1) Could judges strike down this measure as unconstitutional?
(2) If judges were to do this – and here my ignorance really shows – would they thereby strike down all of OBBBA?
Put differently, does a law behave like a logical conjunction that is shown to be false (invalid) if even a even single part is shown to be false (invalid)? Or might a law with some invalidated parts remain valid in its other parts? This is something people oughta know, but I don’t know it.
(3) Last question. If judges strike down a law that restricts judges’ authority to hold people in contempt, then they get to continue holding people in contempt. Right? Legally, they’ve “got the drop” on that law, right?
