In March, President Trump issued an executive order directing
Department of Justice attorneys to request a security bond in every lawsuit in
which the plaintiffs seek preliminary relief. This policy–which represents a
stark departure from the norm–will likely have a chilling effect on civil
rights advocates’ ability to challenge unconstitutional government action.
Federal Rule of Civil Procedure 65 provides that “the court may
issue a preliminary injunction or a temporary restraining order only if the
movant gives security in an amount that the court considers proper to pay the
costs and damages sustained by any party found to have been wrongfully enjoined
or restrained.” Nonetheless, judges typically waive the Rule 65 bond
requirement if they find that putting up financial collateral as a condition
for an otherwise warranted injunction “effectively den[ies] access to judicial
review.” People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional
Planning Agency766 F.2d 1319, 1325 (9th Cir. 1985). In February, for
example, federal judges in Washington, D.C. and Maryland declined to impose
bonds in cases challenging the administration’s attempt to freeze federal
funding and end “DEI” initiatives.
For the American Civil Liberties Union and other public interest
legal advocates, this exemption is critical. Temporary restraining orders and
preliminary injunctions are among the most powerful legal tools used to bring
about systemic change. Impact civil rights lawyers independently investigate
facts and exhaustively research the law prior to filing their case. Seeking
preliminary injunctive relief provides an opportunity for meaningful judicial
review of constitutional violations before litigants incur the enormous costs
associated with civil discovery and trial. The development and systemic
enforcement of constitutional rights and liberties largely occurs at the
preliminary injunction phase, generally leading to permanent relief through
settlement, a stipulated judgment, or some other final dispensation.
Previous administrations rarely sought injunction bonds in cases
that raised constitutional claims brought by groups like the ACLU, though there
have been notable exceptions at the state level. In Chang, et al., v. County
of Siskiyou2:22-cv-01378, our client sought and won a preliminary
injunction preventing the county from unfairly enforcing certain water
ordinances against the local Hmong population. The county claimed that the cost
of enjoining discriminatory enforcement–and the appropriate bond amount–was $20
million. In connection with its injunction, the court ordered our elderly
client, who was living on a limited income, to pay a $56,300 bond for the
injunction to take effect.
By normalizing these kinds of injunction bonds at the federal
level, Trump’s executive order creates additional financial obstacles to cases
seeking judicial review of the administration’s policies and conduct. Thus far,
the DOJ has requested bonds in nearly every lawsuit the national ACLU has filed
against the federal government this year. Although courts may not require bonds
in every case, even the prospect of posting tens of millions of dollars– and
the risk of forfeiting that money if the government ultimately prevails–will
surely deter groups from suing the Trump administration at all. This, of
course, is by design.
More broadly, the security bond mandate is another brick laid
atop a wall blocking constitutional litigants’ access to court. The
administration has dampened the private bar’s willingness to take on cases
adverse to the federal government by issuing punitive executive orders against
a roster of law firms. Courts have limited the ability of organizations to
serve as plaintiffs in civil rights cases. See my family votes v. Fontes,
129 F.4th 691, 763 (9th Cir. 2025). And the U.S. Supreme Court recently held–contrary
to the law in every circuit to consider the issue–that plaintiffs who gain only
preliminary injunctive relief do not qualify as “prevailing parties” for
purposes of collecting statutory attorneys’ fees. LACKEY v. Stynie604
U.S. __, 145 S. Ct. 659 (2025).
Eventually, the wall will rise too high, the economic burdens of
constitutional litigation will become too great, and a large swath of legally
questionable government action will escape judicial review. As many have noted,
the role of lawyers and judges in maintaining the rule of law has never been
more critical. But the bar and bench matter less if we continue to erect
financial barriers that prevent constitutional litigation from being filed in
the first place.
