Trump’s One Big Beautiful (Ugly) Bill Versus an Unsung Hero
An unlikely hero blocked a provision that amounted to an assault on the Constitution: the Senate parliamentarian. Will her ruling stick?
In the dead of night at 2:53 am on May 22, the House of Representatives began to consider President Donald Trump’s “One Big Beautiful Bill Act.”
Four hours later, Republicans passed it by a single vote—215 to 214. It included a provision that effectively forgave most of Trump’s unconstitutional actions and undermined the federal courts.
Republicans in the Senate made it worse.
Over the weekend, an unlikely hero blocked this assault on the Constitution: the Senate parliamentarian. Will her ruling stick? Or will Senate Republicans detonate the “nuclear option” to save the provision?
Negating Trump’s Courtroom Losses
Buried in the House bill’s 1,000-plus pages was Section 70302, which allowed Trump to disregard all existing injunctions and continue his unconstitutional policies with impunity. It provided—retroactively—that unless a court required a bond, it could not enforce a contempt charge for violating an injunction or temporary restraining order.
Rarely are bonds required in cases challenging the constitutionality of government policies. Dozens of judges—including Trump appointees—have issued such injunctions to halt his attacks on Big Law firms, closure of federal agencies, deportation of migrants without due process, and more. In case after case, the Trump administration violated those injunctions or stonewalled. Faced with such disobedience, a court’s only enforcement weapon is a contempt charge.
The House was letting Trump off the hook.
“We Can Look at the Language”
Protecting Trump is one thing. But in their myopic quest to make Trump king, House Republicans committed legislative malpractice: Section 70302 also rendered unenforceable hundreds of previous injunctions issued over decades in cases, ranging from antitrust to school desegregation to police reform.
The provision emerged from the House Judiciary Committee after Democrats tried to kill it. Then it went to the Rules Committee where the Judiciary Committee’s chairman, longtime Trump loyalist Rep. Jim Jordan (R-Ohio), seemed not to grasp its scope.
Unfortunately, Trump—who has urged elimination of the filibuster—doesn’t care about preserving the institutional value of anything. If he can neuter the courts in the process of bending the Senate to his will, so much the better.
In response to questions from Rules Committee member Rep. Joe Neguse (D-Colo.), Jordan asserted incorrectly that the law would apply only to nationwide injunctions in immigration cases. Rep. Neguse pointed out that the provision had no such limitations. It did not contain the words “immigration” or “nationwide.”
Obviously confused, Jordan—a lawyer—briefly consulted with attorneys before responding that Republicans can “look at the language.”
“It’s 6:00 am. You’re voting on this thing in like 10 hours. What are we talking about?” Rep. Neguse replied.
The language didn’t change, and the vote on the One Big Beautiful Bill proceeded.
“This Provision Was Unknown to Me”
Rep. Mike Flood (R-Neb.) has a law degree from the University of Nebraska. At a town hall meeting after voting for the bill, he told angry constituents that he didn’t know about Section 70302.
“I am not going to hide the truth,” he said. “This provision was unknown to me when I voted for that bill.”
“You voted for it!” came shouts from the audience.
Rep. Flood promised to seek its deletion.
The Senate Version is Worse
The Senate proposed a different way to protect Trump’s unconstitutional actions from judicial scrutiny: an enormous bond that would close the courts to the vast majority of potential litigants. It would require any plaintiff seeking a temporary restraining order or preliminary injunction against the federal government to post a bond “in an amount proper to pay the costs and damages sustained by the Federal Government.”
That could be millions—sometimes billions—of dollars. Arizona Supreme Court Justice Clint Bolick outlined the tragic irony:
“The basic idea of a temporary restraining order or preliminary injunction is to prevent the damage to the rights and well-being of citizens from the government carrying out an action or policy that is likely to be found illegal or unconstitutional.”
“The new Senate version turns that logic on its head, instead seeking to protect the government from any costs that might be incurred from citizens asserting their rights…” [emphasis in original]
The Senate version would also prohibit a court from considering “any factor other than” the costs and damages that the government will sustain if it gets the injunction reversed on appeal. In other words, a plaintiff’s inability to pay the bond and the hardship that a plaintiff will sustain if the court refuses to grant the injunction are irrelevant.
The provision would prevent most lawsuits against government action from being filed in the first place because few would have the means to pay upfront. As Justice Bolick observed, Trump’s victims would have no choice but to “accept violations of their rights rather than seek legal redress, severely undermining the Constitution.”
An Unsung Profile in Courage
The Senate is relying on the “reconciliation” process to pass Trump’s One Big Beautiful Bill with a simple majority, rather than the 60 votes that would otherwise be required to overcome a Democratic filibuster. But the process is available only for legislation relating to government spending, taxes, and the deficit. “Extraneous” measures are not allowed.
The Senate parliamentarian determines what is “extraneous.” Elizabeth MacDonough, a former Justice Department trial attorney, has held the nonpartisan position since 2012. Several times under both Republicans and Democrats she has struck prohibited measures from reconciliation bills. The current attempt to limit federal court injunctions is among many provisions that she struck from the Senate version of the One Big Beautiful Bill.
That’s a problem because there are only 53 Senate Republicans, and they need 60 votes to overcome any objection to an extraneous provision, unless…
The “Nuclear Option”
Senate Majority Leader John Thune (R-S.D.) could accept the parliamentarian’s rulings and strip the Senate bill of its offending provisions.
Or he could overrule the parliamentarian with a simple majority (50 + Vice President JD Vance casting the tie-breaking vote)—a rare event. On January 6, 2025, Thune said he wouldn’t use that “nuclear option”:
“Yeah, and that’s totally akin to killing the filibuster. We can’t go there. People need to understand that.”
Sen. John Thune is about to get the test of his political career: loyalty to Trump or to the Constitution?
On May 21, Thune led Republicans in disregarding the parliamentarian’s opinion and repealing California’s electric vehicle mandate banning the sale of most new gas-powered cars by 2035. On the Senate floor, he assured Democrats that it was a one-off based on the Congressional Review Act:
“We are not talking about doing anything to erode the institutional character of the Senate.”
Unfortunately, Trump—who has urged elimination of the filibuster—doesn’t care about preserving the institutional value of anything. If he can neuter the courts in the process of bending the Senate to his will, so much the better.
Sen. John Thune is about to get the test of his political career: loyalty to Trump or to the Constitution? He swore an oath only to one of them.
