A Crippling of the Rule of Law: The OBBB and the Power of Contempt
Without contempt, they won't need to listen to the Courts ever again.
That the Trump administration has been waging war on the rule of law is of no news to anyone. From its open defiance of court orders, especially around immigration enforcement, to its cynical efforts to reshape the legal landscape in its favor by threatening judges, the administration has made one thing clear: it does not believe it should be bound by the judiciary. A provision in the “One Big Beautiful Bill” Act (OBBB) would take this fight against the judiciary to a new level, doing nothing less than enabling the Administration to ignore court orders entirely and to do so without consequence.
When attempting to enforce a court decision, the last resort for any victor is a finding of contempt: a finding that the other party has failed to comply with the court’s decision and orders. Though rarely used—especially against the government—it remains essential. In a functioning democracy, the executive abides by lawful rulings, but these are different times. That norm, like so many others, is now at risk.
Despite its infrequent use, contempt remains a powerful tool. It can bring fines and jail time for the non-complying party. As the administration has racked up legal losses—from illegally impounding appropriated funds to blocked deportations—it hasn’t been able to shake the looming threat of contempt. That’s what this provision is designed to change.
Earlier this year, the administration directed federal attorneys to argue that plaintiffs seeking temporary restraining orders or injunctions should post substantial money—up front—in the form of a bond. Courts can already require this under Rule 65(c) of the Federal Rules of Civil Procedure, but, at their discretion, typically waive it in public interest cases, when there are significant legal questions, or when plaintiffs lack resources. Courts ignored the administration’s push. Now, the OBBB, currently being considered in the Senate, is taking aim at the court’s discretion. Section 70302 of the Act states:
“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.”
Translation: no bond, no contempt—and not just regarding an initial injunction, but throughout the case and including any final decision. Even if the administration flagrantly defies a court order, without a bond, there would be no penalty.
Let that sink in: if the Administration ignores a court’s decision—and no bond was posted—there would be no available legal remedy. The executive branch would be empowered to ignore judicial orders. The rule of law would become a polite suggestion.
Take a hypothetical: let’s say an RFK Jr.–inspired executive order forces all individuals with autism spectrum disorder (ASD) to register with the federal government, as he has threatened previously. A public interest group sues to stop this effort. The judge, recognizing the constitutional implications and the plaintiffs’ lack of funds, waives the bond and grants a temporary injunction. Under current law, that’s entirely permissible. Under the OBBB, it would be fatal. The administration could ignore the court as there would be no option of contempt, it could proceed with its registry, and the judge would lack any authority to stop it. Even if the plaintiffs win a final, permanent injunction, the administration could still disregard it—again, because the bond wasn’t posted at the outset.
Even if the plaintiffs know the rule and are ready to post a bond, that merely opens a new front: a trial within the trial over how much the bond should be. The government will argue that stopping its policies comes with astronomical costs, which would include legal fees. The truth is, however, that valuing a bond is speculative at best. What’s the cost of halting an unjust deportation policy? Or pausing a registry of citizens based on a disability diagnosis? Valuation would devolve into dueling experts, contested estimates, and endless delay—while the underlying harm continues.
And bonds aren’t free. Even if a plaintiff can find a company to issue one, there are nonrefundable transaction fees of 1–5% of the total amount. In our ASD registry example, let’s say the court sets the bond at $6 million (a number based on an arbitrary $1 per-person cost of blocking a government action affecting the approximately six million people with ASD in the United States). The bond fees would be anywhere from $60,0000 to $300,000—just to preserve the possibility of enforcing of an injunction that hasn’t even been decided yet. That reveals one of the key parts of this provision: to force parties to think hard about even filing a case because of the cost.
Even the possible workaround of generous and deep pockets offering to pay the bond could be challenged, with the administration arguing that the plaintiffs aren’t bearing the risk themselves—that they don’t have any skin in the game. The result? More delays. More appeals. More harm done.
The OBBB’s Section 70302 makes this dynamic unavoidable. Plaintiffs must either post a bond—regardless of merit or means—or forfeit any real path to enforcement. Judicial discretion is gutted. The cost of entry is prohibitive. It is as if the Administration knows that it is going to lose and is, as the powerful have done throughout the history of this country, trying to game the system in its favor.
In 2021, JD Vance said that the Administration should act like Andrew Jackson, who once said that, “The Chief Justice [of the Supreme Court] has made his ruling. Now let him enforce it.” The OBBB goes further. It strips the judiciary of enforcement power almost entirely—quietly, permanently, and under color of law. What appears as procedural tinkering is actually another chink out of the rule of law’s armor. Without the power of contempt, the judiciary loses its teeth. Cases would be mired in endless loops of arguing about bonds. Justice would be further out of reach for all but the wealthiest of plaintiffs.
Section 70302 and others make it clear that the OBBB isn’t just a budget bill. It is a fundamental change in how this country is governed, an effort to enable still greater impunity within the executive. This needs to be better understood before it’s too late. Please call or write your representatives and tell them this can’t stand.