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rule of law
'This Is What Autocrats Do': Concern Grows Over Single Paragraph Buried Deep in GOP Bill
The provision would force those challenging Trump "to pay up in the form of a posted bond—something many people can't afford to do. That means only the wealthy will be able to even attempt to challenge the most powerful man in the country."
May 31, 2025
A single paragraph buried deep in a spending bill that passed the GOP-controlled House of Representatives earlier this month is causing growing concern among democracy watchdogs who warn the provision will make it so only the well-to-do would be in a good position to launch legal challenges against a Trump administration that has shown over and over again its disdain and disregard for oversight or judicial restraint of any kind.
Coming just about half-way through what President Donald Trump has dubbed the Republican Party's so-called "One Big Beautiful Bill Act"—which progressive critics point out is a giant giveaway to the nation's wealthiest at the expense of the working class and the common good—the language in question is slight, but could have far-reaching impacts.
"This is what autocrats do. Consolidate power, increase the penalty for objecting, ultimately making it more difficult—eventually impossible—to challenge them."
On Saturday, Human Rights Watch (HRW) noted in a detailed social media thread how the provision "hasn't gotten nearly enough scrutiny" from lawmakers or the public.
A recent piece by USA Today columnist Chris Brennan put it this way:
One paragraph, on pages 562 and 563 of the 1,116-page bill, raised alarms for reasons that have nothing to do with America's budget or safety-net programs or debt. That paragraph invokes a federal rule for civil court procedures, requiring anyone seeking an injunction or temporary restraining order to block an action by the Trump administration to post a financial bond.
Want to challenge Trump? Pay up, the provision said in a way that could make it financially prohibitive for Americans to contest Trump's actions in court.
HRW details how the provision, if included in the final legislation, "would make it more expensive to fight Trump's policies in court by invoking a federal rule that effectively punishes anyone willing to stand up against the administration."
Anyone seeking a legal action that would involve an injunction request against a presidential order or policy, the group said, would to face a much larger barrier because Republicans would make it so that anyone challenging Trump in court in this way would "have to pay up in the form of a posted bond—something many people can't afford to do. That means only the wealthy will be able to even attempt to challenge the most powerful man in the country."
Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, was among the first to highlight the buried provision, calling it both "unprecedented" and "terrible" in a May 19 essay in which he argued that the ultimate effect of the provision is to shield members of the administration from contempt of court orders through the extraordinary limit on those who can bring challenges in the first place. Chemerinsky writes:
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.
Given his critique, Chemerinsky argued, "There is no way to understand this except as a way to keep the Trump administration from being restrained when it violates the Constitution or otherwise breaks the law. The House and the Senate should reject this effort to limit judicial power."
Human Rights Watch appeared to agree with the profound dangers to the rule of law if the provision survives to Trump's desk for signature.
"This is yet another sign of Trump's brazen attempts to stop the judicial branch from holding him accountable," the group warned. "This is what autocrats do. Consolidate power, increase the penalty for objecting, ultimately making it more difficult—eventually impossible—to challenge them."
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Trump and His Big Law Firms Keep Losing
As Trump’s courtroom defeats pile up, the Big Law firms that settled face new uncertainties about their attorneys, their clients, and their futures.
May 27, 2025
President Donald Trump and the Big Law firms that surrendered to his unconstitutional executive orders suffered another bad week.
Trump Loses Again
In a 52-page opinion, U.S. District Court Judge John D. Bates—a 2001 appointee of President George W. Bush—rejected the Justice Department’s effort to defend Trump’s executive order targeting Jenner & Block. Trump’s own words doomed it:
Like the others in the series, this order—which takes aim at the global law firm Jenner & Block—makes no bones about why it chose its target: It picked Jenner because of the causes Jenner champions, the clients Jenner represents, and a lawyer Jenner once employed. (Jenner & Block v. U.S. Department of Justice, et al. Civil Action No. 25-916 (JDB) p. 1)
The court left no doubt that Trump had violated the Constitution:
Going after law firms in this way is doubly violative of the Constitution. Most obviously, retaliating against firms for the views embodied in their legal work—and thereby seeking to muzzle them going forward—violates the First Amendment’s central command that government may not “use the power of the State to punish or suppress disfavored expression.” (Id.; citations omitted.)
Describing how Trump’s actions undermine democracy, Judge Bates previewed the fate awaiting similar orders:
This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution and the Court will enjoin its operation in full. (Id.; emphasis supplied.)
The firms that challenged Trump remain undefeated in the courtroom.
Big Law Firms That Settled Lost Again
Judge Bates sent a message to firms that settled: They should not have “bowed” to Trump. (Id. at p. 1). Calling out the first firm to settle—Paul, Weiss, Wharton, Rifkin, & Garrison—the court seemed incredulous that “[o]ther firms skipped straight to negotiations. Without ever receiving an executive order, these firms preemptively bargained with the administration and struck deals sparing them.” But the firms that settled merely created worse problems for themselves:
“A firm fearing or laboring under an order like this one feels pressure to avoid arguments and clients the administration disdains in the hope of escaping government-imposed disabilities. Meanwhile, a firm that has acceded to the administration’s demands by cutting a deal feels the same pressure to retain “the President’s ongoing approval.“ Either way, the order pits firms’ “loyal[ty] to client interests“ against a competing interest in pleasing the President. (Id. at p. 16; citations omitted.)
Urging that “‘[t]he right to sue and defend in the courts’” is “‘the right conservative of all other rights, and lies at the foundation of orderly government,’” Judge Bates continued:
Our society has entrusted lawyers with something of a monopoly on the exercise of this foundational right—on translating real-world harm into courtroom argument. Sometimes they live up to that trust; sometimes they don’t. (Id. at p. 17; emphasis supplied.)
The firms that settled blew it.
The Losses Mount in Other Ways
As they take a well-deserved public beating, the settling firms also produced new and enduring sources of internal instability. In early May, Paul Weiss partner and former Homeland Security Secretary Jeh Johnson announced his retirement to become co-chair of Columbia University’s Board of Trustees. Johnson’s departure followed the exit of Steven Banks, the firm’s pro bono practice leader.
On the same day that Judge Bates issued his opinion, litigation department co-chair Karen Dunn and three prominent Paul Weiss partners—Bill Isaacson, Jeanine Rhee, and Jessica Phillips—left to form a new firm. Dunn had assisted former presidential nominee Kamala Harris with debate preparation. Isaacson is one of the country’s leading antitrust lawyers. Rhee was former deputy assistant attorney general at the Office of Legal Counsel under President Barack Obama. Phillips was a former clerk for U.S. Supreme Court Justice Samuel Alito. Their new firm will operate free of Paul Weiss’ restrictive settlement terms.
Among those restrictive terms are mandatory pro bono legal services to Trump-approved causes. Paul Weiss, Skadden Arps, Kirkland, & Ellis and other settling firms are fielding such requests and generating unwanted publicity.
Conservative Newsmax host Greta Van Susteren pressed Skadden to represent a veteran wanting to sue a Michigan judge who had issued a protective order against him in a divorce. When the firm equivocated, Van Susteren blasted Skadden on X, where she has more than one million followers. The New York Times covered the episode on the front page of its May 26, 2025 print edition.
It could get worse. Trump’s April 28 executive order requires Attorney General Pam Bondi to use Big Law pro bono legal services in defending law enforcement officials accused of civil rights violations and other misconduct.
The “Trump Effect”
Let’s summarize the damage so far:
First, Trump’s courtroom defeats will continue; appellate judges will affirm those rulings; and the U.S. Supreme Court won’t bail him out this time. But he won the things he wanted most: neutralizing powerful potential courtroom adversaries, a $1 billion war chest, and a stunning public relations victory over powerful institutions that could have slowed his drive toward autocracy—all thanks to the firms that capitulated.
Second, government attorneys trying to save Trump’s unconstitutional orders are suffering irreparable career damage to their reputations. They’re losing credibility defending the indefensible with specious arguments and abandoning their sworn obligations to uphold the Constitution and the rule of law.
Finally, the Big Law firms that settled face new uncertainties about their attorneys, their clients, and their futures. They could admit their monumental mistakes, cut their losses, and walk away from a bad deal that is becoming worse by the day. But that would require humility, sound judgment, and a spine.
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Staring Down the Abyss of 2025: A Reprise
We should do our best to accept that we are confronting a major collapse of a way of living that we had taken for granted.
May 26, 2025
In early January Common Dreamspublished my forecast of consequential developments in 2025, ones that would affect the way we’re governed and how we live our lives day-to-day. Now that the year is nearing the halfway point, and in the spirit of Memorial Day, it is instructive to review the list, which included the following:
- Democratic institutions will continue to crumble, with focus on the erosion of the rule of law in the U.S. and elsewhere;
- Long-standing norms governing public affairs, such as a bar to prosecuting political opponents, will loosen their grip on behavior;
- Countless species, especially among birds and insects, will go extinct;
- “Unnatural” disasters attributable to climate change, like wildfires and floods, will devastate wondrous landscapes and settled communities;
- Politically or environmentally induced mass migration, as experienced now in various parts of the world, will become more pervasive;
- Income inequality between the top .01% and the lowest 50% will increase; and
- economic stability, as in the historic world-wide acceptance of the U.S. Dollar, will wane.
I added the following as caveats to this grim list: uncertainties regarding the targets, timing, locales, extent of severity, and designation of victims.
Broadly speaking the forecast has been accurate. My purpose in conducting this initial review now, however, is not to gloat. Others may have been equally, if not more on target. Furthermore, most of what was predicted was in the wind before the year began. It would be useful at this point to reflect critically, focusing on the caveats noted above, and to address two important questions: “So what?” and “Now What?”
Most telling about what has happened to date in 2025 is the severity, acceleration, and chaos attending several of the enumerated elements, especially those relating to our form of governance and our economic well-being. Even more tragic than the qualifiers just noted is the countless number of innocent victims that have been swept up through indiscriminate governmental action. While the current administration in this country has led the way against those whose main “infraction” has been to exercise their right of free speech, allies like Israel have taken to maiming, starving, and murdering an entire people.
Yes, we should be prepared in the months ahead for even greater severity, continuing acceleration, and unbridled chaos. We should also expect that there will be more victims whose rights are trampled, or lives impaired or destroyed. The strategy of the administration is clear: Do as much as one can as fast as one can, causing as much pandemonium as possible.
So what and now what? What are the implications for those of us who seek to contain a wildfire threatening our political, social, cultural, and economic base? As many others have argued, a more radical, broad-based and well-coordinated disaster relief effort is warranted, involving all those who seek to perpetuate our constitutional republic. “All” here includes notables, leaders of major institutions—judicial, educational, occupational, journalistic, bolstered by millions of ordinary citizens of all ages and backgrounds. This wildfire is barely 5% contained, having engulfed our public life. The stakes are the upholding of a political framework grounded in a set of moral values that has remained largely intact for 250 years.
At the same time, it is important to recognize that individual minds and hearts—yours and mine—are deeply affected by this wildfire. We have been the beneficiaries of this experiment in nationhood, and we are on the verge of becoming its victims. What shall we do with our AMs and PMs beyond joining the “bucket brigade” of mass resistance? What mindset and emotional posture might sustain us going forward?
First and foremost, we must do what we can to quell our fears about the rampant destruction taking place, destruction that is well beyond our control as individuals. Fear breeds a turning inward, a defensive grasping for a way of being that will no longer be available to us. Things will never return to the state they were in before the wildfire broke out. It is better to accept that a large-scale transformation is afoot, one that beckons a personal transformation that we have the capacity to shape.
Essential for countering fear are an ongoing attachment to individual right action, compassionate outreach to others, bearing witness to what is happening around us through conversation or writing, and blessing moral action by others. We can endeavor to heal relationships, both familial and neighborly, and we can seek joy in the most intrinsic pleasures.
Much of what unfolds in the years ahead will cause us to grieve. We should do our best to accept that we are confronting a major collapse of a way of living that we had taken for granted. In place of denial and nostalgia, let’s look for opportunities amid inevitable personal transformation—for durable hope, serendipitous grace, the beauty of human kindness, and the practice of compassion.
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