The Volokh Conspiracy
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GOP Senate Version of the Big Beautiful Bill Includes an Ugly Attack on Courts' Ability to Protect Constitutional Rights
It requires litigants seeking preliminary injunctions against illegal government actions to post potentially enormous bonds.
A provision inserted into the Senate GOP version of Trump's "Big Beautiful Bill" would, if enacted, pose a serious threat to federal courts' ability to protect your constitutional rights. It does so by requiring litigants seeking a preliminary injunction against a federal government policy to post potentially enormous bonds.
Arizona Supreme Court Justice Clint Bolick - who is also an experienced public interest litigator, having served as Director of Litigation at the libertarian Institute for Justice and VP for Litigation at the Goldwater Institute - has an excellent article outlining the danger this provision poses:
[The Senate bill] targets temporary restraining orders and preliminary injunctions. These are rulings that demand that the government halt the enforcement or implementation of a policy immediately, pending the final outcome of the case, if the judge concludes that it is likely the plaintiffs will prevail against the government in the end.
Just imagine, for instance, that during Covid, courts could not stop executive orders closing down houses of worship unless millions of dollars were posted in bonds. Or an executive order confiscating guns. The basic idea of a temporary restraining order or preliminary injunction is to prevent the damage to the rights and well-being of citizens from the government carrying out an action or policy that is likely to be found illegal or unconstitutional.
The new Senate version turns that logic on its head, instead seeking to protect the government from any costs that might be incurred from citizens asserting their rights.
This new version no longer tries to take away the power to enforce rulings through contempt. Nor does it apply retroactively, which could have caused chaos and brought settlements in many old cases into doubt. But it imposes a requirement that plaintiffs suing the federal government post a bond "in an amount proper to pay the costs and damages sustained by the Federal Government." Crucially, "No court may consider any factor other than the value of the costs and damages sustained." That could mean that they can't consider the potential damage to the plaintiffs from the government's actions, nor can they consider the plaintiffs' ability to pay.
Requiring potentially massive bonds to enjoin government action could prevent many or even most such lawsuits from being filed in the first place, because few would have the means to pay upfront. That is especially true in cases involving sweeping policies where the government could claim "costs" in the billions. Only state governments could conceivably post bonds in that amount, though they would also balk at the potential hit to their budgets.
This means that many parties would have no choice but accept violations of their rights rather than seek legal redress, severely undermining the Constitution.
As Justice Bolick explains, this Senate provision is actually worse than the previous House version of this idea, which targeted judges' contempt powers, though the latter was also bad, and likely unconstitutional. My Cato Institute colleague Walter Olson makes additional points along the same lines. As he notes, if this provision passes, the government could impose even blatantly illegal and unconstitutional policies for long periods of time, unless and until litigation reaches a final conclusion. That could inflict grave harm on the victims of illegality. Consider media subject to illegal censorship during a crucial news cycle, illegally deported immigrants, people imprisoned without due process, and more.
Right now, Republicans are seeking to enact these restrictions in order to block injunctions constraining a GOP administration's policies. But, as Bolick notes, under a more left-wing administration the same tool can easily be turned against rights conservatives value. Consider a left-wing president who targets gun rights or religious liberty rights, or tries to censor speech DEI activists consider offensive.
Ultimately, it is more important to ensure the vast powers of the federal government cannot be used to undermine the Constitution and take away our rights than to ensure an administration can swiftly implement all its preferred policies. And if a rogue district court does impose an injunction improperly, higher courts can quickly stay or overturn it, as has happened a number of times in recent months.
If this Senate provision gets enacted, there is a chance courts might invalidate as an unconstitutional assault on the power of judicial review - which it is. But it would be better if Congress does not go down this dangerous road in the first place.
NOTE: Clint Bolick was one of my superiors at the Institute for Justice, when I worked there as a law student clerk in the summer of 1998.
