On Thursday, President Donald Trump issued an executive order that aims to limit legal challenges to his administration’s actions by seeking to get judges to require monetary “security” payments from plaintiffs if an injunction is issued.
Trump’s order directs department and agency heads to utilize a little-known federal law called Federal Rule of Civil Procedure 65(c). That rule allows judges to place financial securities on plaintiffs “to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained” by an injunction or temporary restraining order (TRO).
In other words, if a group sues Trump and an injunction is placed on one of his executive orders — and it becomes possible for a higher court to later overturn that injunction — the administration wants to ensure the plaintiffs in the case pay the federal government’s legal fees, upfront, after the initial injunction is made.
The executive order requiring agencies to seek this policy’s enforcement justifies doing so by claiming that “activist organizations” obtaining “sweeping injunctions” against Trump’s policies and orders will eventually lose their challenges — and that legal expenses incurred by the federal government will be paid for by taxpayer dollars. By obtaining financial security from plaintiffs after an injunction is made, the order argues, it will ensure that those taxpayer costs will be paid for by the litigating party instead, without the risk of their being unable to do so.
But the order is also a clear attack on organizations attempting to sue the Trump administration, falsely describing such challenges to his numerous executive orders and actions as being an “anti-democratic takeover” by “forum-shopping organizations that repeatedly bring meritless suits, used for fundraising and political grandstanding, without any repercussions when they fail.”
Rather than being frivolous or grandstanding, however, these lawsuits are attempting to block executive branch actions that would have real detrimental effects on millions of people living in the United States. More than 100 challenges to Trump’s actions have been made since his inauguration, including on presidential orders relating to immigration policies; actions taken by the “Department of Government Efficiency” that have stalled or blocked federal funding and fired thousands of government workers; orders issued that attack transgender people; and other changes to the federal funding of programs like USAID, the Consumer Financial Protection Bureau, and other agencies.
Importantly, while its goal to stifle lawsuits against the administration is clear, in reality, Trump’s order doesn’t have much teeth — while agencies are now required to make requests for financial securities to be placed on plaintiffs in cases involving challenges to the president’s actions, it is up to judges themselves to determine what that amount should be, or whether any security amount should be placed on plaintiffs at all.
There are already instances where this has happened — in a recent injunction placed on a Trump executive order restricting gender-affirming care for transgender youth, for example, administration lawyers sought a financial security to be placed on the challengers early on in the case. U.S. District Judge Brendan Hurson initially refused the request, and in his injunction order, reiterated that he would not do so.
“Because the Court has found that Plaintiffs are likely to succeed on their claim…the Court again declines to require a bond,” Hurson wrote in his decision.
Jeff Overley, editor-at-large for Law360, analyzed the order and said that there could be instances where some groups are stifled from suing the president.
“It’s entirely possible the memo could give pause to small groups interested in suing the Trump administration…Generally speaking, however, there are reasons to doubt that Thursday’s memo will be a big deterrent,” Overley wrote, adding:
For the memo to deliver results, courts would actually have to grant requests for large security bonds — something that can’t be taken for granted, since the rule explicitly gives judges discretion and has been interpreted by some courts over the years to allow complete waiver of a bond requirement.
Still, despite the low likelihood that judges would impose such fines, the order is clear in its intent: that executive branch agencies will try to enforce the rule in a more vigorous way going forward.
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