President Donald Trump has issued a memorandum directing federal agencies to enforce a rule requiring financial guarantees from parties seeking injunctions or restraining orders in lawsuits against the government. This policy, which aims to address rising litigation and the increasing financial burden on the government, directs the Department of Justice (DOJ) to demand that parties seeking injunctions against the administration cover the costs and damages if the government is ultimately found to have been wrongfully restrained or enjoined by a lower court.
The memo targets what the administration considers “activist organizations” and “activist judges” who it believes are fueling frivolous lawsuits. The Trump administration argues that such lawsuits force the government to spend public resources on defense, delay the enforcement of policies supported by voters, and weaken effective governance. The White House claims that this approach is necessary to counteract an alleged misuse of the legal system, which has led to “meritless suits” that often harm the public interest.
The administration’s policy is based on Federal Rule of Civil Procedure 65(c), which states that courts may issue injunctions or temporary restraining orders only if the movant provides security to cover potential costs and damages to any party that is wrongfully enjoined. While the rule allows for discretion in its application, the Trump administration is pushing for a more uniform approach, insisting that courts require financial guarantees in all applicable cases where injunctions are sought against the government.
This directive follows several instances where federal judges have ruled against the Trump administration’s policies, including those related to diversity, equity, and inclusion directives, and federal aid distribution freezes. In some cases, judges have waived the bond requirement, citing the need to protect constitutional rights or arguing that the bond requirement would unjustly impede access to judicial review.
Despite challenges, the Trump administration believes that this policy will deter litigation, particularly by activist groups with significant financial backing. By requiring a bond to cover potential costs, the administration hopes to reduce the number of lawsuits filed against the government, potentially forcing litigants to think twice before initiating cases. This strategy could limit legal action to those with the financial resources to cover any potential losses, effectively narrowing the scope of challenges to government policies.
Ultimately, while judges have historically treated the bond requirement as discretionary, the administration’s push for stricter enforcement could influence future rulings. If courts increasingly impose such financial guarantees, it might deter less well-funded groups from seeking injunctions, thereby reducing the number of cases filed against the government. However, this could also spark legal challenges, possibly leading to a split in circuit decisions and, in the long term, prompting the U.S. Supreme Court to settle the matter.
