The 116th Congress | Updated May 19, 2020
Tracking Congress’ Attacks on Access to Justice
Members of Congress, with support from powerful special interests, are mounting a quiet attack on the American public’s right to access the courts.
The courts provide a means for people and communities to hold wealthy corporations accountable, and serve as an important check on the power of Congress and the executive branch.
In each Congress, special interests and their lobbyists have pushed lawmakers to introduce legislation that would restrict people’s ability to use the courts to defend civil rights, civil liberties, consumer protections, public health and safety, and the environment.
Each of these dozens of bills contain provisions that present one or more threats to access to justice:
- Limiting Judicial Discretion: Forcing judges to issue sanctions and limiting the power of courts to effectively redress injuries. (See analysis.)
- Meddling with Settlements: Undermining the government’s ability to reach timely and meaningful case settlements. (See analysis.)
- No Judicial Review: Making the courts off-limits with “no judicial review” clauses, eroding the role of courts to hear challenges to certain government actions. (See analysis.)
- Stripping an Individual’s Right to Sue: Including expanding the use of forced arbitration and/or restricting people’s ability to band together to bring class action lawsuits. (See analysis.)
- Too Risky / Expensive to Sue: Making public interest litigation too risky or too expensive to pursue by eliminating attorneys’ fees awards in cases against the government and implementing “loser pays” provisions. (See analysis.)
Without urgent action, these efforts will erect permanent obstacles that will keep people and communities from going to court to defend their rights, their lives, their livelihoods, and the places they love.
Learn about these threats at Earthjustice's in-depth report, Access to Justice: Defending Our Country And Our Courts, and about the stories of people who faced off against rich and powerful special interest groups and were able to beat the odds—because they were able to get into court.
The following are among the most serious legislative attacks to date. Take action to defend your judicial rights by contacting your senators and representative.
Showing all 28 legislative threats
Vote on Floor in At Least One Chamber (1):
1. H.R. 7
Threat
Too Risky / Expensive to Sue
Summary The Motion to Recommit would have restricted attorney fee recovery for woman workers seeking justice in court, which would have made it harder to get to court to vindicate the right to not be discriminated against in the workplace on the basis of sex. The Motion to Recommit failed House vote (191-236).
Filed ():
H.R. 60
Threat
Stripping an Individual’s Right to Sue
Too Risky / Expensive to Sue
Summary §2(j) prohibits Legal Service Corp. from providing legal assistance to any undocumented non-citizen farm worker, for nonimmigrant farm workers under an arbitration agreement. What is arbitration? It is a lot like a casino: the house always wins. This form of dispute resolution tilts decisions in favor of agencies and corporations, because the agency sets the rules and hand-picks the arbitrator—who is likely to side with the agency. with employer LSC barred from assisting farmworker and access to worker severely restricted.
H.R. 76
Threat
Limiting Judicial Discretion
Stripping an Individual’s Right to Sue
Summary Would amend Rule 23(a) of the Federal Rules of Civil Procedure to prohibit courts from certifying a class action involving “misclassification of employees as independent contractors.”
H.R. 77
Threat
Limiting Judicial Discretion
Summary Would prohibit the issuance of national injunctions by federal courts.
H.R. 105
Threat
Limiting Judicial Discretion
No Judicial Review
Summary Eliminates the citizen suit provision to challenge in court the failure of an agency head to comply with a nondiscretionary duty to issue a proposed or final rule under the Energy Policy and Conservation Act related to energy conservation standards for consumer products other than automobiles; also eliminates power of court to fashion equitable relief.
H.R. 518
Threat
Limiting Judicial Discretion
Summary Interferes with the power and functions of the federal judiciary by barring courts from citing as precedent three Supreme Court cases related to the Affordable Care Act — Nat’l Fed’n of Indep. Bus. v. Sebelius, King v. Burwell, and Burwell v. Hobby Lobby.
H.R. 856
Threat
No Judicial Review
Summary Prohibits a civil action in federal or state court by shielding health care professionals from liability for negligent care in certain circumstances; preempts state laws that would otherwise provide for liability in state court.
H.R. 892
Threat
Limiting Judicial Discretion
Too Risky / Expensive to Sue
Summary Amends Clean Water Act to limit attorney fees in citizen suits — §1 limits fee recovery of prevailing plaintiff party to proportion of successful legal claims, cannot exceed monetary penalty imposed against polluter; §1 encourages court to require bond before issuing restraining order/preliminary injunction; §1 encourages “loser pays” fee shifting by court; §3 waives liability to polluter for multiple reasons, including if polluter “exercised due care.”
H.R. 903
Threat
No Judicial Review
Summary §802 unconstitutionally prevents an agency major rule from taking effect unless Congress enacts a “joint resolution of approval”; §805 denies judicial review of any “determination, finding, action, or omission” related to such joint resolution.
H.R. 1332
Threat
Limiting Judicial Discretion
No Judicial Review
Too Risky / Expensive to Sue
Summary §§ 231–244 of bill severely caps statute of limitations for injured people’s ability to bring claims for medical malpractice, dangerous drugs, and faulty devices; severely limits non-economic damages of not only medical malpractice, but of intentional torts of medical providers, including at nursing homes; also preempts state medical tort laws in some instances; limits attorney fee which could have a chilling effect on the ability for some litigants to get into court; Sects. 922 & 923 provide Congressional approval procedures for Food and Drug Administration “FDA” major federal rules and disapproval procedures for non-major rules – while §925 eliminates judicial review for those Congressional actions over final agency actions.
H.R. 2522
Threat
Limiting Judicial Discretion
No Judicial Review
Summary §17 amends §214(a) of the Immigration and Nationality Act by generally barring the ability of an immigrant overstaying their visa by more than 30 days to contest denial of immigration benefits and bans the ability to contest expedited removal from the U.S. within 90 days, except under limited circumstances, including under the Secretary’s “sole and unreviewable discretion” and “no court shall have jurisdiction to review” any claims arising from “detention and expedited removal” under this bill including stripping the federal courts of habeas corpus power (which expands the prohibition currently under 2241 of title 28, limited to alien “enemy combatants” to include all aliens). §17 also amends §214(b) of the Immigration and Nationality Act’s “visa waiver” program to require alien sign a waiver to any right to review or appeal an immigration officer’s adverse determination to entry; to contest any action for removal, and waives right to relieve under other immigration laws including protection from trafficking, VAWA and spousal/child abuse protection.
H.R. 2607
Threat
Limiting Judicial Discretion
No Judicial Review
Stripping an Individual’s Right to Sue
Too Risky / Expensive to Sue
Summary §311 eliminates access to independent courts at sole discretion of agency by sending case/disputes of forest management actions to binding arbitration, shielding agency from judiciary review/oversight; §301 eliminates EAJA fees for all covered legal actions, chilling equal access to justice; §203 & §302 restricts the courts’ ability to use preliminary injunctions to stop irreparable harm during pendency of legal action.
H.R. 3656
Threat
Limiting Judicial Discretion
Too Risky / Expensive to Sue
Summary Preamble of bill blames barriers to accessible quality healthcare on civil litigation; §3 limits the statute of limitations for bringing a claim for medical malpractice, dangerous drugs, & devices; §4 severely limits non-economic damages of not only medical malpractice, but of intentional torts of medical providers, including at nursing homes; §5 interferes with attorney-client agreements that could limit access to quality legal representation and also overrides state laws; §10 delays access to justice in the courtroom by requiring a 90-day written notice before commencing legal action.
H.R. 3740
Threat
Too Risky / Expensive to Sue
Summary §2(d) restricts Legal Services Corp. from providing legal assistance to any undocumented non-citizen farm worker; also, bars LSC from challenging an arbitration agreement imposed on a nonimmigrant farm worker and restrict access to these workers.
H.R. 4057
Threat
Limiting Judicial Discretion
No Judicial Review
Stripping an Individual’s Right to Sue
Summary §107 of the bill eliminates access to independent courts by sending certain disputes of Forest Service management actions to binding arbitration, shielding agency from judiciary review/oversight; §107 also limits who can intervene in a proceeding, limits the timeframe for filing a challenge, and since federal courts are not involved, eliminates the courts’ ability to use preliminary injunctions to stop irreparable harm during pendency of legal action.
H.R. 4099
Threat
Limiting Judicial Discretion
Summary Amends §308(a) of the Americans with Disabilities Act to impose additional barriers to person’s right to seek civil justice in court including: delays by 60 days the ability to bring a civil action; eliminates the court’s power to issue injunctive relieve; and creates additional details of alleged violations to be specified before a claim can be filed in court; the bill also orders the Judicial Conference of the United States to develop an alternative dispute resolution process for the ADA under Rule 16 FRCP.
H.R. 5694
Threat
Too Risky / Expensive to Sue
Summary §4 requires annual report to Congress disclosing expenditures for Endangered Species Act cases, including award of attorney fees; §5 restricts the award of attorney fees under the ESA citizen suit provision to EAJA capped rates, rather than judgment fund rates for other citizen suit statutes as determined by court. Also, could shift payer of fees from Treasury to agencies, making protecting species harder.
S. 92
Threat
No Judicial Review
Summary §802 unconstitutionally prevents an agency major rule from taking effect unless Congress enacts a “joint resolution of approval”; §805 denies judicial review of any “determination, finding, action, or omission” related to such joint resolution.
S. 328
Threat
No Judicial Review
Summary §8 amends the APA to create additional hurdles impeding the ability of federal agencies to promulgate Congressional mandated, economically significant rules by including, among other things, a required cost-benefit analysis and assessment that could alter the selection of the preferred alternative — all actions by an agency which would be shielded from any judicial review.
S. 831
Threat
No Judicial Review
Summary Allows agency to delist Mexican gray wolf without being subject to judicial review.
S. 1266
Threat
Stripping an Individual’s Right to Sue
Too Risky / Expensive to Sue
Summary Creates a voluntary binding arbitration program to settle contract disputes between a self-insured group health plan and a health care provider, but mandates that the non-prvailing party to the arbitration pay all the costs of the binding arbitration proceeding, and imposes a $500 a day penalty for failure to pay.
S. 1303
Threat
Limiting Judicial Discretion
No Judicial Review
Summary §17 amends §214(a) of the Immigration and Nationality Act by generally barring the ability of an immigrant overstaying their visa by more than 30 days to contest denial of immigration benefits and bans the ability to contest expedited removal from the U.S. within 90 days, except under limited circumstances, including under the Secretary’s “sole and unreviewable discretion” and “no court shall have jurisdiction to review” any claims arising from “detention and expedited removal” under this bill including stripping the federal courts of habeas corpus power (which expands the prohibition currently under 2241 of title 28, limited to alien “enemy combatants” to include all aliens). §17 also amends §214(b) of the Immigration and Nationality Act’s “visa waiver” program to require alien sign a waiver to any right to review or appeal an immigration officer’s adverse determination to entry; to contest any action for removal, and waives right to relieve under other immigration laws including protection from trafficking, VAWA and spousal/child abuse protection.
S. 1426
Threat
Limiting Judicial Discretion
Meddling with Settlements
Too Risky / Expensive to Sue
Summary §2 changes judicial intervention rules for ESA related cases and forces a court allowing interveners to refer the case to a mediation program or a magistrate judge, encourages court to apply “loser pays,” prohibits award of legal expenses to plaintiffs under settlement/consent decree, prohibits settlement/consent decree unless no political entity (state, county, town, etc.) which the agency “believes a species occurs” objects.
S. 1480
Threat
Limiting Judicial Discretion
Too Risky / Expensive to Sue
Summary §4 eliminates, for certain criminal proceedings, court discretion to grant equitable relief from a final judgment when justified; §5 limits injunctive relief, limits non-economic damages against an arresting officer or department, and limits/prohibits recovery of attorney fees in successful actions against arresting officer/department.
S. 1494
Threat
Limiting Judicial Discretion
No Judicial Review
Summary Would void any court orders related to “conditions of detention” for immigrant children regardless of whether they arrived in the U.S. with a legal guardian and shields decisions of the agency from all judicial review; also voids the 1997 “Flores Settlement Agreement” on standards for the detention and release of unaccompanied minors; and shields decisions by immigration officers to deport unaccompanied minors from any judicial review.
S. 1518
Threat
Limiting Judicial Discretion
Meddling with Settlements
Too Risky / Expensive to Sue
Summary In addition to multiple categorical exclusions of NEPA review, §201 limits judicial review of challenges to permits for energy development on public lands by barring challenges not brought within 60 days of final agency action; requiring cases to be filed in only D.C. Cir court, requires federal court to “resolve” case or appeal within 180 day (which is nearly impossible); §201(e) bars EAJA and APA recovery of legal fees for prevailing parties; §201(f) requires losing parties to pay other parties’ legal fees; §202 delays settlements and consent decrees with unnecessary additional procedural filings
S. 1790
Threat
No Judicial Review
Passed Committee
Signed Into Law Dec. 20, 2019
Summary §7611 provides immigration assistance to Liberian refugees, stating they “shall” be granted permanent residence. However, it allows Homeland Security to deny that right if the Secretary determines the non-citizen falls into an exception. That determination is then not subject to judicial review, preventing an affected non-citizen from seeking to vindicate their rights from an independent federal court.
S. 3208
Threat
No Judicial Review
Summary Would halt most agency efforts to implement critical public health and environmental laws. This provision would allow the presidential administration to tank a rule that it and its polluter benefactors didn’t like, while shielding that decision from oversight by independent federal judges.
Take action today to defend your judicial rights by contacting your senators and representative.
Media Inquiries
Coby Dolan, Senior Legislative Counsel
(202) 745-5207,
cdolan@earthjustice.org
Download data of legislative threats from the 116th Congress
Download data of legislative threats from the 115th Congress
Filter options Clear filter
