Senate Republicans can’t include in their budget reconciliation package language that would make it harder to challenge U.S. government actions in court, as well as some immigration-related provisions, under guidance from the Senate parliamentarian announced by Budget Committee Democrats.

Senate Parliamentarian Elizabeth MacDonough found that the provisions do not comply with the Senate’s Byrd rule, meaning it would take 60 votes on the floor to overcome a point of order on the language — unless Republicans find a different way to draft the language or do not adhere to the guidance.

Republicans have a 53-member majority in the Senate as they work on a forthcoming substitute amendment to the House-passed budget bill. The process of reviewing the reconciliation text to filter out provisions deemed “extraneous” to fiscal policy, known as the “Byrd bath,” is ongoing.

The injunction provision, included in the Judiciary Committee portion of the text, would block federal judges from issuing a preliminary injunction or temporary restraining order against the federal government unless plaintiffs put up a security “in an amount proper to pay the costs and damages” sustained by the federal government.

The language dovetails with broader efforts from congressional Republicans this year to limit the latitude of district courts, as those judges have issued orders slowing or temporarily halting Trump administration moves.

Legal experts who criticized the reconciliation language have said litigants who bring lawsuits against the federal government could face a costly bond requirement when seeking a preliminary injunction. Critics also said the provision would have blocked courts from considering whether a plaintiff can pay.

The language would have restricted the ability of groups to get temporary pauses on government actions while their lawsuits continue through the court system, a process that can take months or years, critics argued.

Sen. Richard J. Durbin of Illinois, the top Democrat on the Senate Judiciary Committee, said in a statement that Democrats were able to get rid of “reckless provisions that have nothing to do with the budget,” including the bond provision.

“Here’s what Senate Republicans attempted to sneak into their so-called Big, Beautiful Bill: a provision intended to limit the ability of individuals and organizations to challenge lawless Trump Administration executive actions by putting those potential plaintiffs on the hook for millions of dollars,” Durbin said.

Sen. Jeff Merkley, D-Ore., who is the top Democrat on the Senate Budget Committee, said in a statement that Democrats “plan to challenge every part of this bill that hurts working families and violates this process.”

Immigration provisions

The Senate parliamentarian guidance also found provisions that would reimburse states for border security and immigration costs to be subject to a 60-vote threshold.

Language in Section 90005 of the Homeland Security and Governmental Affairs text released by Budget Chairman Lindsey Graham, R-S.C. would have allowed states greater leverage in conducting operations for border security and immigration enforcement, which typically is under the jurisdiction of the federal government, according to Budget Committee Democrats. 

And language in Section 155 of the Judiciary panel text would give state and local officials the authority to arrest any noncitizen suspected of being in the U.S. unlawfully, the Democrats said.

Also in the Judiciary text, the parliamentarian guidance cut against inclusion of a provision that would have limited certain grant funding for “sanctuary cities” when the attorney general determines state and local immigration enforcement does not comply with a federal law. The provision is found in Section 154, Paragraph 5, Subparagraph C.