The Volokh Conspiracy
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Does the Big, Beautiful Bill Contain a Threat to Judicial Independence? (Updated)
Is it a problem if a provision requires judges to comply with the Federal Rules of Civil Procedure?
The New York Times reports on an ominous provision in the House passed "Big Beautiful Bill" through which Republicans are trying to "weaken federal judges." From the story:
The sprawling domestic policy bill Republicans pushed through the House on Thursday would limit the power of federal judges to hold people in contempt, potentially shielding President Trump and members of his administration from the consequences of violating court orders. . . .
The language in the House-passed bill would block federal judges from enforcing their contempt citations if they had not previously ordered a bond, a provision that Republicans said was intended to discourage frivolous lawsuits by requiring a financial stake from those suing. . . .
Democrats have argued that House Republicans' measure would rob courts of their power by stripping away any consequences for officials who ignore judges' rulings. They also noted that the measure would effectively shield the Trump administration from constitutional challenges by making it prohibitively expensive to sue.
"We've never said to American citizens and constituents that in order to vindicate their rights in federal court, they're going to be required to provide a security when their constitutional rights have been violated by their government," Representative Joe Neguse, Democrat of Colorado, said.
Curious, I looked up the relevant provision in the House-passed bill. It reads:
No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.
So the issue, then, is what is required by FRCP Rule 65(c). It provides:
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. The United States, its officers, and its agencies are not required to give security.
So it would seem that Rule 65(c) already requires security to be given before such orders issue, subject to the judge's discretion as to what constitutes a "proper" amount.
This has become an issue because many judges use this discretion to set the security amount at zero. From the story:
The amount is supposed to be set at what "the court considers proper" to cover any costs that might be suffered if that injunction is later found to have been incorrectly issued. But federal judges have wide discretion to set their bonds, and often refrain from doing so.
Samuel L. Bray, a Notre Dame law professor, said many judges do not order injunction bonds in cases where people are seeking to stop government actions that they claim are unconstitutional.
"It doesn't wind up getting used as much as it's supposed to," he said, "and it especially doesn't wind up getting used when people sue the federal government."
I'll defer to Prof. Bray on this point, but it seems to me that the common practice of waiving any security is contrary to the rule as written. After all, if the rule were intended to give judges the discretion to set the security amount at zero, might it have been drafted to make requiring security at all a matter of judicial discretion? That is, giving judges discretion to set an amount is not the same thing as giving judges the discretion as to whether to require security at all.
In any event, this may all be moot as it is not clear that this provision will survive the Senate. Among other things, it is not clear how this provision is sufficiently budget-related for a reconciliation bill, but we will see.
UPDATE: It's a good thing I said I'd defer to Prof. Bray, as he was ahead of me in flagging this provision, and notes that it does more than I suggest. Indeed, in a post at Divided Argument he suggests the provision is "underinclusive, overinclusive, and likely unconstitutional." Going forward, judges could effectively evade its requirements by setting the security required at $1. But since the provision is also retroactive, it could blow up all sorts of federal court injunctions on the books (as in school desegregation orders or antitrust remedies). And, most significantly, he suggests the provision "is probably unconstitutional as an attempt to interfere with the inherent power of a court of equity to enforce its decrees with contempt." Duly noted.
