I'm not sure how much difference that bill's clause makes in practice. As I understand it (courtesy of the "Advisory Opinions" legal podcast, but any misunderstandings are my own), the problem is that, if the executive branch is going to ignore the courts, then they're going to ignore the courts. A court can recommend prosecution for contempt, but prosecutors are part of the executive branch. A court could try and appoint their own prosecutor, but then the court is both judge and prosecutor - which goes against the US system's goal of an impartial and independent judiciary. The court could issue a fine for contempt, but then the government is paying a fine to the government? It could issue a sentence of jail time, but the executive branch administers the prisons and has the pardon power.
I'm disgusted with the executive branch's actions and congressional GOP's enablement. And, since the administration at times seems to want a fig leaf of legality, maybe the bill would make a difference after all by giving them more coverage. But, overall, I'm not sure that it's the "game over" step change that some commentary makes it sound like it is.
I could be misunderstanding - comments / counterarguments welcome.
> And, since the administration at times seems to want a fig leaf of legality, maybe the bill would make a difference after all by giving them more coverage.
Justice Alito and Justice Thomas in particular latch on to any fig leaf of legality to excuse the administration's out-of-court admissions of intent to break the law [1]:
> If courts pay more attention to out-of-court presidential and Administration statements, that will be another example of how the “presumption of regularity”—”the courts’ baseline assumption that government officials act lawfully and in good faith,” as Alan Rozenshtein puts it—is in serious jeopardy. Justice Alito’s dissent to the A.A.R.P. order, in which Justice Thomas joined, shows that those two justices remain content to rely on the Government’s representation’s in court—and vexed that their colleagues apparently feel differently.
> I'm not sure how much difference that bill's clause makes in practice.
There are at least three massive problems aside from undermining the role of courts in enforcing their interpretations of the law.
- The clause applies to both government-associated defendants and non-governmental defendants. [2]
- Federal Rule 65(c) does not apply to final injunctions, but the wording of the clause might apply to final injunctions. [2]
