WHAT'S REALLY GOING ON HERE?
ATTENTION U.S. SENATE: GOP'S BUDGET RECONCILIATION BILL SLIPS IN A DANGEROUS, RETROACTIVE PROVISION THAT ELIMINATES FEDERAL COURTS' POWER TO ENFORCE THEIR ORDERS, INCLUDING IN HARVARD'S CASE.
The narrow Republican majority in the House of Representatives, at President Trump’s behest, last week attempted to misuse the so-called “reconciliation” process — which allows a simple majority vote in both halls of Congress to set the appropriations framework for the federal budget process -- to hamstring the authority of the federal judiciary created by Article III of the Constitution to enforce the laws of the land, including the Constitution itself. Deep in the thousand-page text of what they and Trump term their “Big Beautiful Budget Budget Bill” is a sentence that strikes at the very heart of our courts’ enforcement powers and tools. “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.” https://www.msnbc.com/opinion/msnbc-opinion/republican-house-bill-trump-court-contempt-rcna209184
The reference to the courts use of “appropriated funds” is the GOP fig-Leaf seeking to clothe this legislative mischief as a “budgetary” subject and this avoid what would surely be a successful filibuster by Senate Democrats if such a proposal had to face a vote on its own terms. Despite its seemingly technical wording, this provision packs a big punch on behalf of President Donald Trump’s vendetta agenda, exposed first, right after its passage by a single vote, by the dean of the University of California Law School at Berkeley Erwin Chemerinsky in an article in Just Society.
“By its very terms this provision is meant to limit the power of federal courts to use their contempt power. It does so by relying on a relatively rarely used provision of the Rules that govern civil cases in federal court. Rule 65(c) says that judges 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.’ But federal courts understandably rarely require that a bond be posted by those who are restraining unconstitutional federal, state, or local government actions. Those seeking such court orders generally do not have the resources to post a bond, and insisting on it would immunize unconstitutional government conduct from judicial review. It always has been understood that courts can choose to set the bond at zero.
https://www.justsecurity.org/113529/terrible-idea-contempt-court/ (Emphasis added.)
If passed quickly this summer by the GOP-controlled Senate under reconciliation procedures, the new law would have the effect of reversing several recent federal court rulings temporarily restraining Trump’s extra-legal assertions of power, before higher courts including the Supreme Court could pass judgment on the merits of the cases, all because no bonds had been required of the plaintiffs.
“Recent temporary restraining orders and preliminary injunctions illustrate this. For example, federal Chief Judge James Boasberg issued a temporary restraining order preventing individuals from being flown to a maximum security prison in El Salvador without due process—an order that Judge Boasberg found the federal government willfully disregarded. Federal Judge Paula Xinis has issued orders, affirmed by the Supreme Court, to have Kilmar Abrego Garcia brought back from El Salvador, since he was taken there—the one country in the world that an immigration judge ruled he could not be removed to—without due process and, according to a government lawyer, by mistake. Several federal courts, including the Supreme Court, have issued orders preventing the Trump administration from using the Alien Enemy Act of 1798 to deport more people to El Salvador without basic due process safeguards. It would make no sense to require the plaintiffs in these suits to pay bonds to be able to have access to the federal courts.
“But the provision in the House bill would make the court orders in these cases completely unenforceable. Indeed, the bill is stunning in its scope. It would apply to all temporary restraining orders, preliminary injunctions, and even permanent injunctions ever issued. By its terms, it applies to court orders ‘issued prior to, on, or subsequent’ to its adoption.” Ibid.
He also observed that, beyond the recent judicial limits on these Trump executive actions actions since his inauguration, numerous court orders – in past cases ranging from antitrust to protection of private tax information, to safeguarding the social security administration, to school desegregation to police reform – would be rendered unenforceable because typically judges did not require a bond from the plaintiffs in advance — even if the action giving rise their claimes had been found to violate the Constitution — because “all existing judicial orders where no bond was required would become unenforceable.” Ibid.
Representative Joe Neguse, Democrat from Colorado, asserted on X (formerly Twitter) that the new legislative prohibition on enforcement of federal court orders “basically would attempt to try to stop federal courts or limit the ability of federal courts to enforce contempt orders. Why? Because they know that they are, the Trump administration, losing in virtually every court in the land, and as a result, in their effort, in terms of the campaign that they're waging against the judiciary and the Article Three branch of our government, they've decided that this would be the latest salvo in that effort. It's plainly unconstitutional, but they're going to go forward anyway." https://www.newsweek.com/hidden-provision-trump-bill-court-2075769t
The GOP’s proposed retroactive restraint on the federal judiciary’s enforcement powers could have a dramatic effect on the escalating dispute between the Trump Administration and Harvard University. On the same day that the House passed the Budget bill with its Trump-enabling poison pill, Harvard University was informed by letter from Homeland Security Secretary Kristi Noem that its federal license to enroll international students had been summarily suspended.
"‘It is a privilege, not a right, for universities to enroll foreign students and benefit from their higher tuition payments to help pad their multibillion-dollar endowments,’ Noem said in a statement. In the letter to the university, Noem gave Harvard ‘the opportunity’ to regain its certification by turning over within three days a raft of records about foreign students, including any video or audio of their protest activity in the past five years.” https://www.reuters.com/world/us/trump-blocks-harvards-ability-enroll-international-students-nyt-reports-2025-05-22/
At Harvard, a conflict with President Trump had been building for weeks, after the Trump administration’s Joint Task Force to Combat Antisemitism criticized the university for anti-Israel bias. Notably, the nearly seven thousand Harvard students she set up for immediate expulsion not only from the university but also from this country if they fail to promptly to another school include a significant number of Jewish students. On April 11, the task force sent a letter demanding that Harvard comply with a list of a dozen specific and in some case multiplex demands, including on the one hand eliminating all efforts to achieve diversity, equity and inclusion goals and at the same time requiring Harvard to hire an independent auditor acceptable to the Administration to survey the ideology of Harvard’s professors, staff and and students to assess their “viewpoint diversity” and submit he results to the Administration by year end 2025 and at least three years thereafter.
“‘Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity; every teaching unit found to lack viewpoint diversity must be reformed by admitting a critical mass of students who will provide viewpoint diversity. If the review finds that the existing faculty in the relevant department or field are not capable of hiring for viewpoint diversity, or that the relevant teaching unit is not capable of admitting a critical mass of students with diverse viewpoints, hiring or admissions within that department, field, or teaching unit shall be transferred to the closest cognate department, field, or teaching unit that is capable of achieving viewpoint diversity.’”
https://www.nytimes.com/interactive/2025/04/14/us/trump-harvard-demands.html
Neither Harvard nor any other self-respecting university could agree to such an official governmental intrusion on its Constitution academic freedom or on the privacy and First Amendment rights of of its members; see this Newsletter of April 15, 2025, for the full details of what the the Trump’s proposed federal political takeover of Harvard’s operations (and which Harvard immediately rejected). https://www.thefire.org/news/harvard-stands-firm-rejects-trump-administrations-unconstitutional-demands
Even one of Harvard’s most aggressive internal cultural critics, Professor Steven Pinker, has recognized in print that the University had to reject the Administration’s orders. “The demand of the Trump administration to audit Harvard’s programs for diversity and jawbone a ‘critical mass’ of government-approved contrarians into the noncompliant ones would be poisonous both to the university and to democracy. The biology department could be forced to hire creationists, the medical school vaccine skeptics and the history department denialists of the 2020 election. Harvard had no choice but to reject the ultimatum, becoming an unlikely folk hero in the process.” https://www.nytimes.com/2025/05/23/opinion/harvard-university-trump-administration.html?campaign_id=39&emc=edit_ty_20250523&instance_id=155138&nl=opinion-today®i_id=131181222&segment_id=198538&user_id=38b303dd03bf112f0a12b9a4c026d63e
Harvard announced it was rejecting the Trump Administration’s April 11 demands on multiple academic freedom and other First Amendment due process grounds while affirming is commitment to taking all needed steps to eliminate the ant-Semitic and anti-Islamic conduct that its own internal task force reports had already been revealed within the Harvard community. https://news.harvard.edu/gazette/story/2025/04/harvard-wont-comply-with-demands-from-trump-administration/
At the same time, the University filed a federal lawsuit likewise challenging the Administration’s decision to cancel what now amounts to $3 billion in federal research contracts and putting a total of $9 billion in federal funding at risk to coerce the University to agree to the unlawful demands in the April 11 letter from HHS, and also to punish Harvard without due process for the University’s alleged anti-Semitic treatment of its Jewish students totally unrelated to those federal dollars which were preponderantly for medical and other scientific research.
In addition, Secretary Noem had also began investigating those charges in mid-April under Title VI of the Civil Rights Act, with an accompanying threat to immediately revoking Harvard’s federal license to enroll foreign students unless the University responded to her liking to several requests for in-depth information about its current international students and their individual conduct while at Harvard. https://www.politico.com/news/2025/04/21/harvard-files-suit-in-challenge-to-trump-administrations-funding-cuts-00301778
“‘Her request included eight criteria, including the coursework for every international student and information on any student visa holder who had been involved in illegal activity,’’ …. raising ‘concerns among the university’s lawyers that the administration’s request went beyond data that the school was legally allowed to share, according to people familiar with the matter.’”
https://www.nytimes.com/2025/05/22/us/politics/trump-harvard-international-students.html
After some back and forth as to what information Harvard considered itself legally authorized or capable to provide and what Secretary Noem’s team wanted, she made good on her threats and issued her suspension letter on May 22, explaining that her decision was because of the University’s failure to comply with what she terms “failure to comply with simple reporting requirements.” Ibid.
“The department said Harvard had failed to create a safe campus environment for students, especially Jewish ones, and alleged that many ‘anti-American, pro-terrorist agitators’ on campus were foreign students.
“A Harvard spokesman called the government’s move unlawful and said the school is committed to maintaining its ability to host international students. ‘This retaliatory action threatens serious harm to the Harvard community and our country, and undermines Harvard’s academic and research mission,’ he said. International students were left scrambling.”
The Trump Administration’s supporters constantly wail against “unelected judges” when courts issue opinions and orders inconsistent with MAGA values, but who elected Kristi Noem to act as judge and jury of who and what is "anti-American?" As to the U.S. Constitution, it appears that, like Rick in Casablanca, she “was misinformed” when she told Congress that the right of habeas corpus found in Article II is actually the right of the president to deport people without due process!
As to due process in the Harvard case, no subpoenas relating the Administration’s multiple and changing data requests have been issued to the University, nor have any of the legally required procedures for reviewing and terminating a license to admit foreign students been initiated. Secretary Noem gave Harvard only a few days — in some case only 72 hours — to reply to her frequently changing and rather informal requests requests for data that raise serious issues about student rights to privacy.
“Federal regulations stipulate how and why a school’s certification can be revoked. One way is the failure to comply with specific reporting requirements, a rule Ms. Noem’s letter mentioned. Harvard has maintained that what Ms. Noem asked for exceeded what is required by law.
“‘This is unprecedented,’ said Andrea Flores, who was a D.H.S. official under President Barack Obama and is now the vice president of immigration policy at FWD.us, an immigration advocacy group. ‘D.H.S. has never tried to reshape the student body of a university by revoking access to its vetting systems, and it is unique to target one institution over hundreds that it certifies every year.’”
https://www.nytimes.com/2025/05/22/us/politics/trump-harvard-international-students.html
“Effective immediately, Harvard’s thousands of international students would have little choice but to try to secure a transfer to another school, or they will end up without legal status in the US, along with more than 300 dependents, the school said. Harvard can no longer sponsor those visa holders for its upcoming summer and fall terms, despite having admitted them. Countless academic programs, research laboratories, clinics and courses supported by its international students have been thrown into disarray.” https://www.bloomberg.com/news/articles/2025-05-23/harvard-gets-temporary-block-of-trump-s-foreign-student-ban
Harvard immediately filed a motion in federal court challenging the Administration’s suspension of its license to enroll foreign students, and the Judge imposed short-term temporary restraining order on the Trump Administration pending court hearings on the matter beginning May 29.
“The motion says that the revocation of the certification is unconstitutional and that the record is clear that the action was taken ‘in direct retaliation against Harvard for refusing to cede control of its academic prerogatives to the government and because the government disagrees with Harvard’s perceived viewpoints.” It might typically take extensive legal discovery to prove that, Harvard’s attorneys wrote, but, in this case, ‘numerous officials up to and including the President laid their retaliatory motive bare,’ the motion contends…."“
“[Just hours after the lawsuit was filed, Judge Allison D. Burroughs in U.S. District Court in Massachusetts ordered the Trump administration to take no action on the visas while litigation continues.”
https://www.washingtonpost.com/education/2025/05/23/harvard-lawsuit-international-students-trump-administration/
The international student visa matter and other issues arising from the Trump Administration’s attack not only on Harvard University but also on all private and state-sponsored educational institutions will likely not be settled before even more permanent damage to America’s heretofore stellar reputation in the field of higher learning is done.
"‘This should be a warning to every other university to get your act together,’ Noem said on Fox News on Thursday….The administration's stated objective is weeding out antisemitism, but it's also pushing President Trump's vision of eliminating perceived liberal slants, sharpening discipline measures and reconstructing the makeup of student and faculty bodies….‘This is a blueprint for fealty to the administration,’ Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression, told Axios in an email Thursday. ‘Institutions must stand up for their rights now, or risk never getting them back again,’ he added.”
https://www.axios.com/2025/05/22/harvard-warning-universities-noem-dhs
In a another new move — impacting all American colleges and universities seeking foreign students — announced just after Harvard won the restraining order, Secretary of State Marco Rubio instructed all U.S. embassies and consular offices worldwide to pause scheduling interviews for student visa applicants pending the State Department’s consideration of a new directive that would would require ire far more in-depth vetting of applicants’ social media posts than heretofore.
“If the administration carries out the plan, it could severely slow down student visa processing. It also could hurt many universities who rely heavily on foreign students to boost their financial coffers….The administration had earlier imposed some social media screening requirements, but those were largely aimed at returning students who may have participated in protests against Israel’s actions in Gaza….” https://www.politico.com/news/2025/05/27/trump-team-orders-stop-to-new-student-visa-interviews-as-it-weighs-expanding-social-media-vetting-00370501?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=00000161-872c-d36f-a367-87ffc9150000
“While international students make up slightly more than 5 percent of university students nationwide, some of the nation’s most selective schools rely far more heavily on them. At New York University, home to nearly 60,000 students, one-third of them are international. At Columbia, about two in five students come from abroad.” https://www.nytimes.com/2025/05/24/us/harvard-trump-international-students-impact.html
The May 28, 2025, edition of the New York Times includes a full list of the actions of the Trump team’s host of actions designed to bring Harvard (and, according to Secretary Noem, any other university that defies her orders) to its knees and turn over control of its hiring, admissions, academic programs and free speech rights to Trump’s team. Cabinet.https://www.nytimes.com/2025/05/28/briefing/harvard-trump-funding.html
At this time, however, the temporary restraining order halting the suspension of its international student enrollment and any other TRO’s or more permanent injunctive relief Harvard or other schools may obtain, even from the U.S. Supreme Court are at risk of nullification under the new ban on such federal court remedies that the House GOP snuck in to its version of the Budget Reconciliation Bill now pending in the United States Senate, where it needs only Republic votes to pass. Thus far, all such relief from Trump Administration orders already granted to Harvard, other schools, law firms, immigrants, states, private businesses and other tariff payers, NGOs and other nonprofit entities would be caught up in the Budget Bill’s “retroactive” clause if no bond was posted by those seeking to reverse illegal or unconstitutional government actions and policies.
We are back to where we started this Newsletter edition: how does this MAGA legislative threat to our judiciary and system of checks and balances — core bulwarks a our form of democracy against executive overreach especially since presidents have been lately immunized from criminal prosecution after leaving office — come to a just and definitive end?
Federal judges, including in the Harvard cases, could make an effort to comply (even by amending prior orders) with the terms of the proposed legislation by requiring some minimal form of bond from plaintiffs like Harvard before issuing any restraining orders, contempt citations or other injunctive relief. Dean Chemerinsky in his article on the Budget Bill suggested they could set bond as low as one dollar. https://www.justsecurity.org/113529/terrible-idea-contempt-court/
Putting aside whether the Trump Administration would be at risk of significant monetary loss requiring a bond, such an ultra-low security deposit seems like a form of malicious compliance with regard to a suit brought by an institution owning an endowment exceeding fifty million dollars. The federal procedural Rule 65© cited in the House bill “says judges may only issue preliminary injunctions or temporary restraining orders if litigants provide a security bond ‘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.’ Judges have wide discretion on that amount, and, as The Intercept’s Shawn Musgrave notes, the rule requiring such a financial guarantee is ‘generally relaxed when the lawsuit alleges illegal conduct by the government.’ But no more if Republicans get their way.” https://www.msnbc.com/opinion/msnbc-opinion/republican-house-bill-trump-court-contempt-rcna209184
“Samuel L. Bray, a Notre Dame law professor, said many judges do not order injunction bonds in cases where people are seeking to stop government actions that they claim are unconstitutional….“and it especially doesn’t wind up getting used when people sue the federal government.”
https://www.nytimes.com/2025/05/22/us/politics/trump-policy-bill-judges-contempt.html
The Senate Parliamentarian would be on firm grounds under the Senate rules that grant an exemption to the sixty-vote majority generally required to pass for comprehensive budgetary bills such as the House GOP’s legislation. “The megabill is being passed under the budget reconciliation process, which is supposed to be used only for fiscal matters. A change to the rules around contempt would appear to be disqualified under that process, but already Senate Republicans have shown willingness to play fast and loose with the chamber’s procedures.” Ibid.
More pointedly, The Senate GOP should simply drop this perverse attempt to use the Reconciliation process to amend the Constitutional separation of powers by neutering the federal courts’ ability to assure their orders are carried out.
“In light of the provision’s dubious constitutional foundation, the first response to the GOP’s effort should be political, not legal. Now would be a good time for Republicans in the Senate who call themselves ‘constitutionalists’ to stand up and be counted. Or, failing that, for Americans to shame them into doing so.” Ibid.