A budget bill by the U.S. House of Representatives would limit federal courts’ ability to hold government officials and other litigants in contempt for disobeying their orders.
Erwin Chemerinsky, dean at the University of California at Berkeley School of Law, expressed some concerns about that proposal. According to this provision, federal courts would be able to 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 would apply even to previously issued orders.
Security is related to a money bond that would cover potential costs and damages from a wrongly issued injunction, imposed pursuant to Rule 65(c) of the Federal Rules of Civil Procedure.
Apparently, federal courts rarely require security in lawsuits against government defendants challenging actions as unconstitutional. According to Chemerinsky “it always has been understood that courts can choose to set the bond at zero”. Failing to set a bond before a temporary restraining order or a preliminary injunction is against Rule 65(c), but it doesn’t invalidate the court order.
The bill is under discussion and it failed a committee vote on May 23.
District judges would lack the power to enforce contempt orders. Apparently the budget bill provision aims to protect federal government from any legal consequences for disrespecting court orders.