Trump Orders DOJ to Demand Money Bonds From Challengers in Court

[mahatmakanejeeves]

3. The government wants to financially bludgeon those seeking to defend constitutional rights

The government wants to financially bludgeon those seeking to defend constitutional rights

by Ronnie London March 10, 2025

A new White House directive to heads of executive departments and agencies threatens to make it prohibitively expensive for Americans to defend the Constitution in court. The memo “directs” the departments and agencies to “demand” that courts make those seeking injunctions against federal actions “cover the costs … incurred if the Government is ultimately found to have been wrongfully enjoined.” ... The move could not be more transparent in attempting to scare off potential litigants challenging executive orders or other federal actions of questionable constitutionality.

The White House deems this necessary because “activist organizations” are supposedly “inserting themselves into the executive policy making process” and have “obtained sweeping injunctions.” The administration claims Rule 65(c) of the Federal Rules of Civil Procedure mandates security bonds for all preliminary injunctions and temporary restraining orders to protect against the prospect of a later judicial ruling that the defendant was improperly enjoined. ... But this is misleading. That literal reading of the rule may make sense in the mine-run of private disputes, like claims in commercial contexts. But courts have long recognized exceptions for public-interest litigation, especially when it comes to those seeking to protect constitutional rights. In other words, “activist groups” like FIRE and the clients we proudly defend.

It’s bad enough Rule 65 already exempts “the United States, its officers, and its agencies” from the bond requirement if they win a preliminary injunction, and that the feds also avoid the obligation the Civil Rights Act imposes on state actors to pay attorney fees if a party sues to correct a constitutional violation and wins. But to insist on payment by a party challenging the constitutionality of government action — after that party has shown likelihood of succeeding on the claim, as is required for a preliminary injunction — clearly seeks to buck the case law on public interest litigation. In the name of disincentivizing challenges to constitutionally suspect federal action, no less.

And that’s just wrong — the government should not be in the business of financially punishing those who seek to vindicate their constitutional rights, or of erecting extra barriers to being able to do so.

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