By: Alex LeBlanc
Introduction
Welcome to our new series of articles, Keeping it Current, where we examine how the foundational principles embodied in our Constitution apply to today’s political landscape. This will not be a series of “hot-takes” or a simple recap of top news stories. Instead, we intend to provide a deep dive on the issues, legislation, and government actions that pose a significant risk of running afoul of our constitutional order.
To kick off the new series, we will review two pieces of legislation recently passed by the House seeking to reshape the power of the Judicial branch as it exists today; H. R. 1 – One Big Beautiful Bill Act (OBBA) – which will curtail the courts’ ability to hold those who violate court orders in contempt unless a bond has been paid by the plaintiff – which could be in the millions of dollars in federal lawsuits – and H. R. 1526 – No Rogue Rulings Act of 2025 (NORRA) – which seeks to prevent nationwide injunctions being issued out of lower level courts. As one of the three branches of government and a significant check on executive overreach, any legislation that seeks to reshape the judiciary warrants the highest levels of scrutiny, not just by our legislators but by every American.
Current Landscape
While arguments can be made for and against any piece of legislation, it is important to keep in mind that nothing happens in a vacuum. Context matters. Let’s take a moment to zoom out and review the current political and legal landscape into which these two pieces of legislation have been launched.
Most Presidents have sought to expand the power of the executive in some form during their tenure, often through the use of Executive Orders. Since returning to office, President Trump has issued approximately 163 Executive Orders in six months, 383 if you include his first term. This puts him on pace for an unprecedented rate of issuance, surpassing even the pace set by FDR during the New Deal Era, who still holds the record at over 3,700 Executive Orders issued. For comparison, President Biden issued just 160 orders over his four-year term, President Obama 276 over eight years, and President Bush 290 over both of his terms. While legislative gridlock may contribute to this trend, what’s alarming is the lack of resistance from a Congress dominated by the President’s party—a body meant to jealously guard its constitutional powers.
Given this abdication of power by Congress, it is only natural that the courts become the battleground of the people versus an unrestrained executive, and that is exactly what we are seeing. Similar to the unprecedented pace of Executive Orders coming out of this White House, we are also witnessing an unprecedented flurry of legal actions against the President and the agencies serving under the executive branch.
According to a recent Bloomberg article, as of May 1st there were at least 328 lawsuits filed against the actions of the current administration. Now that we are most of the way through June, estimates put the total between 350 – 370 legal actions. Complete aggregate data for total lawsuits against prior administrations is hard to find. So, for context, let’s look at how many lawsuits were filed by state Attorneys General via multi-state coalitions against administrations all the way back to the 1980s.
| Administration | Multistate Lawsuits Filed | Time Period |
| Trump (2025–2028, 2nd Term) | 132 (as of mid-2025) | First 5 months |
| Biden (2021–2025) | 126 | Entire term |
| Trump (2017–2021, 1st Term) | 103 | Entire term (notably, 50+ in first year) |
| Obama (2009–2017) | 78 | Two terms |
| George W. Bush (2001–2009) | 76 | Two terms |
| Clinton (1993–2001) | 18 | Two terms |
| Reagan (1981–1989) | 39 | Two terms |
While we should note that it is often coalitions of red states that push back against Democratic presidents – 50 of the lawsuits brought against the Biden administration were filed by Texas Attorney General Ken Paxton – and vice versa, a clear trend can be seen. As Presidents have sought to expand the scope of their power, resistance has materialized from the states through litigation in court, peaking with the current Trump administration, which has already outpaced Biden’s entire term in just 5 months. Further legal actions have been filed by labor unions, civil rights organizations, private universities, private law firms, non-profits, and others. These cases have covered a multitude of issues, including but not limited to:
- Immigration orders allegedly violating due process
- Executive efforts to end birthright citizenship
- Firing of federal employees and impounding of congressionally approved funds
- Rollback of DEI programs and imposition of anti-DEI mandates
- Press freedom concerns after barring AP from briefings
- Dismantling of congressionally created agencies
- Orders altering private university policies
- Blacklisting law firms representing plaintiffs against the administration
As Congress has ceded more and more power to the Executive branch, the courts have taken on the role of the primary check against the concentration of power in the Presidency. You are probably wondering how the current administration has fared in these legal battles. Afterall, it could be argued that as America has become more polarized and dominated by special interest groups we are merely seeing more and more frivolous lawsuits materialize as sour grapes due to lost elections. However, the win/loss ratio is heavily skewed against the current administration, with only 25% of issued rulings decided in their favor, 43 wins and 128 losses with another 140 cases still awaiting decisions as of May 1st. While many in support of the President’s agenda have claimed plaintiffs are filing their cases in sympathetic courtrooms under democrat appointed judges, the decisions for and against the administration have shown little partisanship, with 24% of the decisions blocking the administration from proceeding coming from judges appointed by Republican administrations – including by Trump – and 45% of the decisions siding with the administration coming from democrat appointed judges.
Against the backdrop of an emboldened Executive branch unrestrained in the pursuit of more power, a passive Congress intent on trading their Constitutional power for safety against primary challengers, and an overwhelmed judiciary with lawsuits piling up faster than they can be litigated, is now the best time for Congress to consider two major pieces of legislation attempting to overhaul the court’s ability to check the ever growing power of the Presidency?
History of the Court’s Injunction and Contempt Power
You might assume that a function as core to our understanding of the court’s power, as the ability to punish those in contempt of its ruling, would be found in the Constitution, but that is not the case. While the contempt power is considered inherent and necessary to the functioning of the judiciary and traces its roots back to 14th-century English common law, it was not included in Article III of the Constitution. It was not until the Judiciary Act of 1789 was passed by the First Congress and signed by President Washington that the contempt power was explicitly granted to the courts to compel compliance with court orders, maintain courtroom order and integrity, and protect the judicial process from obstruction or disrespect. It was further refined via the Contempt Act of 1831 to protect against abuse of this power for personal reasons, restricting its use to misbehavior in or near a courtroom, disobedience of lawful court orders, and misconduct of officers of the court. While there have been multiple other tweaks over time, this power remains mostly the same today.
While the OBBA does not target the contempt power itself, it does target the Federal Rules of Civil Procedure 65(c), which established that a court may only issue a preliminary injunction or temporary restraining order if the plaintiff pays a security “in an amount that the court considers proper” to cover the losses on behalf of the defendant if an appeals court later overturns the decision. Courts have historically had wide latitude in reducing or completely waiving these bonds, particularly in cases of citizens bringing suit against the government. In such cases, it is standard for the court to level the playing field by not requiring private citizens to pay bonds in the face of the vastly superior resources of the federal government. By doing so, the courts have not only acted as a check on governmental overreach, but they have also ensured that justice for everyday citizens is not dependent on their ability to pay huge bonds upfront.
While the argument for such judicial power is readily apparent in the face of the items laid out in this article above, there are those who maintain that despite the ample case law defining, refining and constraining this power it still poses a risk in the form of concentrated power in the judiciary. They point to the fact that in this area a judge can often act as accuser, enforcer, and punisher, although any punishment greater than 6 months in jail requires a jury trial. Additionally, there is the worry that this power is ripe for abuse in politically sensitive cases and may lead to a constitutional crisis should the court attempt to restrain an executive intent on ignoring its orders.
The history and evolution of the court’s injunction power is very similar to that of their contempt power. With roots in English jurisprudence, yet not explicitly stated in the Constitution, it was later established by the same Judiciary Act of 1789, expanded and refined through the 19th and 20th centuries, especially in labor disputes to restrict strikes and union activities but also in civil rights enforcement post Brown v. Board of Education, and is currently governed by Federal Rule of Civil Procedure 65. Those federal rules outline the procedures for lower courts to issue temporary restraining orders and both preliminary and permanent injunctions, often nationally, in order to proactively preserve rights, stop unlawful conduct, and prevent irreparable harm while maintaining the status quo during litigation.
The key concerns voiced by both sides at one point or another includes a concentration of power and judicial overreach argument similar to that of the contempt power; but is further fleshed out with arguments concerning forum shopping – the practice of plaintiffs filing in courts known to favor certain politically motivated reasoning in the hopes of a nationwide injunction – as well as the delay and uncertainty that comes from multiple conflicting rulings resulting in inconsistent enforcement and limbo status of national policies moving through years of appeals and thus hindering efficient governing.
There are multiple examples of agendas from administrations of both parties falling victim to these national injunctions. For example, during the first Trump administration, the 2017 travel ban blocking travel from Muslim-majority states was placed on hold until revised enough to pass judicial review. Similarly, the Biden administration was blocked by the courts from instituting Student Loan Forgiveness nationwide by judges in Texas and Missouri. Obama faced similar issues with the DAPA Program in 2015 and parts of the Affordable Care Act faced national injunctions as well.
Given the current context, it begs the question – when one party captures both Houses of Congress, the Presidency and the Supreme Court, and only the lower court rulings of judges from both sides of the aisle constrain a wholesale make-over of our government, which powers are truly being abused?
Likelihood of Passage
Having passed the House on April 9, 2025, mostly along party lines – 219 to 213, NORRA now sits with the Senate Judiciary Committee for review and approval to go to the Senate floor for a vote. However, since this bill has no budget implications, it is subject to current Senate filibuster rules, meaning it will require 60 votes in order to pass. Republicans only hold 53 seats, and Democrats hold 47. So, this bill will only advance out of the Senate on a bipartisan basis, not likely given that the courts have been the only effective check on the Trump administration to date.
Initially, the path to curtail the court’s contempt power was a bit different. As a provision in the OBBA, a budget bill passed by the House on May 22, 2025, the Senate would only have needed a simple majority of 51 votes to pass it due to the rules of the budget reconciliation process. However, the Byrd Rule – which seeks to eliminate as extraneous any provisions that are not specifically budgetary in nature, along with other balancing requirements – was invoked by the Senate Democrats and triggered review by the Senate Parliamentarian, who recently rejected that provision. If left in the bill, it would require the same filibuster proof 60 vote threshold, again, not likely under the makeup of the Senate at this time.
One could be forgiven for thinking this spells the end for significant action against these core powers of the court. However, the Senate Judiciary Committee could attempt to rewrite the provision so it meets the Byrd Rule requirements. Since Trump has basically mandated Republicans in Congress to have the OBBA on the Resolute desk for signature by July 4th, and the fact it must return to the House for reconciliation of the changes made by the Senate, time is quickly running out for a rewrite. Instead, we should turn our attention to Trump v. CASA, Inc., the case which started out as an effort to stop Executive Order 14160 – the Trump administration’s attempt to overrule Constitutionally mandated birthright citizenship – and has now turned into a review of lower courts’ ability to enact nationwide injunctions. While the Supreme Court has already heard arguments in this case, a decision is still pending and expected to be released this summer.
Conclusion: Checks not Chaos
When Congress shows no desire to restrain the excesses of executive overreach, the courts become the last check on a powerful President intent on remaking the government to serve his agenda without question. It is our duty as citizens to take action when the balance of power in our Constitutional Republic is under attack. We may not be able to sway the Supreme Court’s decision, but we can keep pressure on our legislators to ensure the attack on the court is not bolstered further through passage of NORRA or rewritten provisions in the OBBA. We must work to alter the legal and political landscape of the future so that future legislation seeks to protect the court and the separation of powers, not attack it. Reach out via phone and email to your elected representatives and let them know we want checks, not chaos.
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