How Trump and Congress’s GOP Majority Could Destroy the Federal Judiciary in Two Simple Steps

The federal courts are all that stand in the way of a Trump-led authoritarian regime. It’s abundantly clear that President Trump and his Cabinet of amateurs and sycophants has no respect for the Bill of Rights. Anyone paying even casual attention to the administration’s treatment of universities, migrants, and career employees of the federal government itself must acknowledge that the First, Fifth and Fourteenth Amendments have largely been ignored. Except when the federal courts have forced the Trump regime to pay attention.

As for the Congress, well, the House passed the Big Beautiful Bill by one vote. And that’s enough to send it on to the Senate. At more than 1,000 pages, its bigness is undeniable. So too is the enhancement of the national debt that would inevitably result from its passage as is. Whether the Senate will behave more responsibly remains to be seen. Meanwhile, we are left to struggle through the massive tome, suspecting that the worst of its devils may lie in its details. Do this and you won’t be disappointed.

Consider, for example, these 58 words, buried deep in the document:

"No court of the United States may 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.”

They are the whole of section 70302 and arrive at the end of the Title dealing with immigration.

Section 65(c) of the Federal Rules of Civil Procedure says, “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.” The crucial proviso in this rule is “in an amount the court considers proper.” In cases involving civil rights and civil liberties, the plaintiffs often have limited means. Consequently, federal judges sitting on such cases, more often than not, find that zero is the proper amount of security to be required.

Under section 70302 of the BBB, absent a substantial bond being posted by the plaintiff(s), the president and his minions could ignore a judge’s order with impunity. The Supreme Court has already ruled that Mr. Trump himself is immune from liability for almost any act he performs in his capacity as the chief executive. “Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.” Chief Justice Roberts, who wrote this opinion, will live to rue the day, I predict, as will the Associate Justices who joined him.

Section 70302 will pull the teeth of the district and appellate courts below the Supremes. If they follow long-standing tradition and don’t demand posting of a bond by such guardians of our liberties as the ACLU, the administration can ignore the courts’ orders. And if they do seek to set “proper” “security,” what do you imagine the U.S. Department of Justice will argue is the “proper” amount? It will always be far more than the plaintiff(s) can pony up.

But that’s not all.

One simple second step could lead to the closing of the courthouses. That’s right. Federal courthouses are protected by the U.S. Marshall Service. Want to guess who controls the Marshall Service? If you guessed the judiciary which it protects, you are wrong. No, it’s part of the Department of Justice.

“The mission of the U.S. Marshals Service is to enforce federal laws and provide support to virtually all elements of the federal justice system by providing for the security of federal court facilities and the safety of judges and other court personnel; apprehending criminals; exercising custody of federal prisoners and providing for their security and transportation to correctional facilities; executing federal court orders; seizing assets gained by illegal means and providing for the custody, management, and disposal of forfeited assets; assuring the safety of endangered government witnesses and their families; and collecting and disbursing funds.”

I invite you to imagine the travesty that will play out, once section 70302 of the BBB is the law of our land. Mr. Trump then instructs AG Pam Bondi to have her Marshals stand down. The federal courthouses are stripped of their security. Next come all the Proud Boys and other ‘January 6th’ miscreants pardoned by the president on his first day back in office. Confident of yet another pardon, should they be arrested and convicted at all, they storm the courthouses. They were prepared to lynch VP Pence to halt the counting of the Electoral College votes in 2021. Do you suppose they’ll be queasy about stringing up a few federal judges? I don’t.

A deadly travesty, indeed. Strip away the courts and we inherit the wind.

(P.S.—-There are other deadly time-bombs buried in the 1000+ pages of the BBB. Stay tuned…)