Right now, the only thing that’s preventing Donald Trump from going full dictator is the federal court system and our ability to challenge his unlawful, unconstitutional behavior in it. Republicans in the Senate think they have a fix for that, though. It’s a good-news, bad-news scenario, although the bad is far worse than anything most of us could have imagined.
The good news is that Senate Republicans have removed the provision in their Kill Medicaid to Pay for Tax Cuts for Billionaires (“big, beautiful bill”) legislation that would have prevented courts from being able to hold Trump’s people in contempt of court when they refuse to follow court orders.
The bad news is that they’ve replaced it with a provision in Section 70302 of the bill that will make it all but impossible for anybody—other than billionaires and giant corporations—to sue the Trump administration for dictatorial behavior (or anything else) in federal court.
This may have something to do with the fact that over 300 lawsuits have been filed against Trump and his goons, and federal courts have blocked Trump in at least 187 of them, as of this week. Trump has outright won only 7.1 percent of the cases where he or his administration have been sued.
The system Republican senators have inserted to keep you and me—and nonprofit public interest groups and blue-state governors—from suing Trump is pretty straightforward; instead of just filing the lawsuit and paying the typically small fees associated with those filings, you’ll now have to post a bond that could run into the millions or even billions of dollars before your filing can be accepted by the court.
Alicia Bannon, judiciary program director at New York University’s Brennan Center for Justice, told The San Francisco Chronicle: “If this language becomes law, it will be financially impossible for ordinary Americans to go to court to protect their rights, like trying to make sure they receive Social Security payments or are protected against unlawful deportation. Bonds for those orders could cost many millions of dollars.”
Republican chairman of the Senate Judiciary Committee Chuck Grassley was truly excited by the prospect of everybody—except billionaires and giant corporations—being blocked from the federal courthouse when Trump’s people screw them. He crowed: “Finally, the Senate Judiciary Committee is advancing solutions in the One Big Beautiful Bill to restore the constitutional role of the federal judiciary.”
UC Berkeley Law School Dean Erwin Chemerinsky, author of Constitutional Law: Principles and Polices (among other great books), told the Chronicle the legislation, if it becomes law, would prevent people whose rights have been violated by the Trump administration from getting help from the courts “at a time when the president is violating the Constitution as never before seen in American history.”
The bond amounts that must be posted are calculated as the expected “amount proper to pay the costs and damages sustained by the federal Government.”
Arizona Supreme Court Justice Clint Bolick notes at his UnPopulist newsletter that such a bond requirement will bring most filings before federal courts to a screeching halt: “That is especially true in cases involving sweeping policies where the government could claim ‘costs’ in the billions. Only state governments could conceivably post bonds in that amount, though they would also balk at the potential hit to their budgets.”
And the court you’re filing the request for relief with can’t even consider your economic circumstances or the cost to you of the damage inflicted by the Trump administration depriving you of your rights. The bill explicitly says: “No court may consider any factor other than the value of the costs and damages sustained.”
Are you a citizen who’s been arrested and detained illegally by ICE and held in detention for months where you were starved and beaten up? ICE could claim it’ll cost them $10 million or $50 million to litigate and resolve your case, so that’s what you’ll have to put up before you can ask the court for relief or damages.
Have you been denied reentry to the United States? Assaulted, robbed, or raped by an ICE, FBI, or other federal officer? Had your Social Security or Medicare benefits cut off as punishment for your political activities? Arrested and held in a hellhole Louisiana private prison for years for carrying a sign protesting Trump’s fascist behavior?
Tough luck, as the old saying goes. Bolick adds: “This [provision] means that many parties would have no choice but accept violations of their rights rather than seek legal redress, severely undermining the Constitution.”
Trump isn’t the only authoritarian in Washington, D.C., as this provision proves. Republicans in the Senate are more than happy to block average citizens, their attorneys, public interest groups, and even states from the federal courthouse doors, leaving us all at the mercy of Trump and his goons.
Even the Koch-funded libertarian Reason magazine was horrified, writing: “If this provision passes, the government could impose even blatantly illegal and unconstitutional policies for long periods of time, unless and until litigation reaches a final conclusion. That could inflict grave harm on the victims of illegality. Consider media subject to illegal censorship during a crucial news cycle, illegally deported immigrants, people imprisoned without due process, and more.”
In other words, America is on the verge of dictatorship, and this will push us over the edge in a way that may well be irreversible.
Even conservatives should be concerned, as it’s unlikely the GOP will control the federal government forever and a future Democratic administration could abuse this provision just as easily as the Trump regime is no doubt eager to do.
