The Big, Bad Budget Bill
Really scary or business as usual?
I have seen this post—I’ll call it the “Apocalyptic Post”---a few times on social media. It warns that the U.S. is just one vote away from a dystopian autocracy. Specifically, it says, “We won’t have another election if the Big Beautiful Budget Bill (H.R. 1) passes the Senate.”
Could this possibly be true?
TL;DR: The answer is yes. We should all be calling our senators to ask that Sections 70302 and 43201 be removed from the budget bill.
But first, read on to ensure you have accurately captured the danger that those sections present. As you might expect, it’s a little bit complicated.
Section 70302 limits the ability of U.S. Courts to enforce a contempt citation, and Section 43201, Artificial Intelligence and Information Technology Modernization, prohibits states and localities from regulating artificial intelligence models and systems for a period of 10 years. I’ll explain these provisions and why they are dangerous.
Section 70302: Limit enforcement of contempt citations.
This provision is by far the most concerning. It uses a loophole to make many past and current court orders unenforceable.
First, I need to explain how the judicial branch of government holds the executive branch accountable to the Constitution. The Federal Rules for Civil Procedure say that anyone seeking a restraining order or injunction has to put up money (a bond) to cover potential damage that results from the order. The vast majority of the time, judges waive the bond when the case is in the public interest or deals with civil rights. The discretion to require a bond allows the courts to weed out frivolous restraining orders and injunctions, while still keeping that legal path open for lawsuits with merit.
Let’s use an example. Say that Jane Doe, a lawful resident of the United States with no criminal record, is mistakenly detained by ICE. The ACLU sues the Department of Homeland Security and Kristi Noem for unlawful detention. They ask the judge for an injunction to stop the deportation of Ms. Doe, and to keep her in a detention facility in Massachusetts (where she lives) until she can be released. The judge reviews the case and agrees to the injunction, waiving the bond requirement, as is typical of these cases. The government deports the person anyway. The judge then issues a contempt order. Federal Marshals are tasked with enforcing the order, which would entail jail time or a fine, or both. Because of this system, it’s exceedingly rare for the government to ignore a court order. This ability of the courts to hold the executive branch accountable is the linchpin. It’s how our democracy prevents the consolidation and abuse of power.
If Section 70302 passes, the linchpin breaks. Here is the actual wording of the provision:
“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.”
Or in plain language: if a judge waives the cash bond (which is typical), and the government ignores a court order, and that judge then holds the government in contempt for ignoring that order, then … nothing. The courts can’t spend the government’s money to pay the U.S. Marshals to enforce the contempt order. So it ends there.
Now, you might say, what’s wrong with paying a bond? Shouldn’t plaintiffs have to pay something to deter frivolous lawsuits? And couldn’t judges set the bond really low, so as not to deter meaningful lawsuits?
That’s a good point. And yes, according to Erwin Chemerinsky, Dean of the UC Berkeley School of Law, judges could set the bond as low as $1 going forward. But there is a rub. The last line in the provision says (my emphasis): “whether issued prior to […] the date of enactment”. That means all past court orders where the judge waived a bond could be null and void, including, potentially, the foundational court cases that established judicial review and compelled the President to comply with court orders in the first place.
And then there are the 177 current court rulings that have temporarily paused some of the Trump Administration’s actions. These include everything from government firings and the dissolution of independent government agencies to federal funding freezes and the ending of birthright citizenship. All of these would have to be re-litigated.
Chemerinsky explains the impact this provision would have on current and past litigation:
“Because federal courts rarely have required plaintiffs to post bonds, it would mean that hundreds and hundreds of court orders–in 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. Even when the government had been found to violate the Constitution, nothing could be done to enforce the injunctions against it. In fact, the greatest effect of adopting the provision would be to make countless existing judicial orders unenforceable.”
Looking back at the Apocalyptic Post at the beginning of this article, the line 'Judges can’t enforce their own orders' does seem to be true, at least for past court orders that did not have a bond.
What about other statements from the Apocalyptic Post, like canceling elections, ignoring Supreme Court orders, and firing government workers for disloyalty? It's possible that the White House could get away with those actions, particularly if the past court decisions that set boundaries on the executive branch are erased.
Even some GOP members have raised objections to this provision. Congressman Mike Flood (Republican from Nebraska) admitted in a town hall meeting with his constituents that he didn’t know the provision was included in the Budget Bill and that, if he had, he would not have voted for it.
Section 43201–Artificial Intelligence and Information Technology Modernization
This provision appropriates $500 million to “modernize and secure federal information technology systems through the replacement of some existing systems and the deployment of commercial AI and automation technologies. Specifically, [...] to (1) replace or modernize legacy business systems with commercial AI and automated decision systems; (2) facilitate the adoption of AI models that increase efficiency and service delivery; and (3) improve the cybersecurity of federal information technology systems through modernized architecture, automated threat detection, and integrated AI solutions.”
I am assuming that DOGE will be at least a consultant in this endeavor. Given the current lack of information and transparency provided by DOGE, I, for one, don’t feel particularly confident that these AI systems will always be used ethically. Pair this with a section on “terrorist organizations” that allows the executive branch to define what a “terrorist organization” is, and the significant uptick in spending for immigration detention facilities, and I can see why some folks think the government could be using these provisions to ramp up their surveillance, detention, and deportation operations. For those of you who might say: What’s wrong with that? Aren’t these people actual terrorists? The answer is No. As of last month, ICE statistics available on its website show that 40% of detainees do not have a criminal record, and many more have low-level offenses, like traffic violations.
But that’s not all! In addition to incorporating AI into our government systems, the Bill imposes a 10-year moratorium on any state or local regulation of AI. That’s a head-shaker for me. I spent nearly a year creating a series of AI tutorials for law firms, and what I learned is that AI is definitely a work in progress. It still gets things wrong, can be biased, lacks clarity on the ethics of using copyrighted works to train AI models, and consumes a massive amount of electricity. In short, AI is desperately in need of common-sense rules.
And this provision on AI regulation isn’t just for the future. It would repeal all existing state and local laws that attempt to regulate AI. There are more than 20 states that have laws to make it harder for AI systems to be used to spread fake content to mislead voters, discourage people from voting, and confuse the public about the legitimacy of elections. These laws would be gone in time for the next election.
So, when the Apocalyptic Post warns that VPNs and speech can be tracked and flagged, that protesters can be deemed criminals and votes suppressed, what it is likely referring to is the encroachment of unregulated AI into our government systems, and the possibility that bad actors could use those systems to rig elections and silence protests.
Let’s take a look at the rest of the statements in the post.
Erosion of LGBTQ+ Rights?
YES. Some provisions would prohibit federal Medicaid and CHIP (children’s healthcare) funding for gender transition procedures for both minors (Sec. 44125) and adults (Sec. 44201).
Erosion of [Public] Education?
YES. Section 110109 provides tax credits for individuals who donate to scholarships for students enrolled at or attending elementary or secondary public, private, or religious schools.
As Prospect.org reports:
“The bill gives $20 billion in the form of tax credits to donors who give money to voucher schools. It also creates a tax shelter from paying capital gains taxes to donors who give appreciated stock to voucher schools. These two provisions amount to a direct federal subsidy to voucher schools using wealthy individuals as a pass-through. This government support for voucher schools comes at a time when Department of Education support for public schools is being slashed.”
Erosion of Healthcare?
YES. There are numerous provisions related to Medicaid, the ACA, and Medicare. I would need a PhD in healthcare management and more time to make sense of it all, but the highlights are that there will be new work requirements for able-bodied people seeking Medicaid and SNAP (food stamps). SNAP will be reduced by approximately $267 billion over 10 years, placing a greater funding burden on states. Medicaid will be reduced by $700 billion. Some of the work provisions don’t start until 2028, after Trump leaves office.
Erosion of the Free Media?
MAYBE. It’s possible that the provision requiring the bond to enforce court orders would make it easier for the White House to withhold Congressionally allocated funds from the Corporation for Public Broadcasting. This could also empower the Administration to violate the Constitution by punishing members of the press.
Other things that ARE in the budget bill include provisions that:
Repeal or phase out the many Biden-era tax incentives for clean energy. This is concerning enough for me that I plan to provide a brief review of these provisions in tomorrow’s Substack.
Increase state and local tax deductions to $40,000 from $10,000 for those earning up to $500,000.
Continue Trump’s 2017 tax cuts (initially set to expire this year).
Increase the estate tax exemption to $15 million.
Overhaul Immigration:
$46.5 billion to revive the border wall, expand detention facilities, including family residential centers, add new Border Patrol agents, customs officers, and ICE agents.
Institute a wide range of immigration fees, including $1,000 for migrants seeking asylum.
Allow criminal aliens to be removed without a further hearing.
The Budget Bill passed the House with a narrow (215 to 214) margin and is now in the hands of the Senate. According to the BBC, the bill is estimated to add $5.2 trillion to the U.S. debt and increase the budget deficit by $600 billion in the next fiscal year.
Taking Action
I will call my senators to ask that Sections 70302 and 43201 be struck from the H.R. 1 Budget Bill (The Big Beautiful Bill). I’ll also lodge my objections to other issues, such as gutting the Clean Energy provisions and instituting a $1,000 fee to asylum seekers.