Does the Senate Reconciliation Bill Contain a Threat to Judicial Independence? Or Is It a Welcome Limit on Universal Injunctions?

The Senate has adopted its own version of a provision designed to limit preliminary injunctions against the federal government when no bond is posted.

Last month I noted a provision in the "Big, Beautiful Bill" (sic) that would place limits on the issuance of preliminary injunctive relief against the federal government. The provision was apparenly inspired (at least in part) by this Wall Street Journal op-ed.

Though largely a means to ensure compliance with FRCP 65(c), the provision may have also been overbroad and had a retroactive effect.

The Senate has adopted a similar measure, albeit one that is different in multiple respects. My co-blogger Ilya Somin notes Justice Clint Bolick's deep concerns about the provision here. Over at the Divided Argument substack, Samuel Bray offers a more sanguine take, calling the Senate provision a "vast improvement."

Here is the text of the Senate version:

No court of the United States may issue a preliminary injunction or temporary restraining order against the Federal Government (other than a preliminary injunction or temporary restraining order issued in a case proceeding under title 11, United States Code) if no security is given, in an amount proper to pay the costs and damages sustained by the Federal Government, when the injunction or order is issued pursuant to rule 65(c) of the Federal Rules of Civil Procedure after the date of enactment of this Act. No court may consider any factor other than the value of the costs and damages sustained when making its determination of the proper value of such security, and that determination shall be appealable upon issuance of the preliminary injunction or temporary restraining order under an abuse of discretion standard.

In Bray's view,

the Senate version is a dramatic improvement over the House version—it avoids the serious constitutional problems that were likely to doom the House bill, and it is more effective and harder to evade in requiring meaningful injunction bonds in suits against the federal government. The effect of that change will be to give more weight in the preliminary injunction calculus to the regulatory cost of preliminary injunctions to the federal government—not just in the current administration, but in future administrations, both Republican and Democratic.

That does not mean the provision is perfect. Bray also notes the effect of this provision (should it be adopted) will also depend on how it is interpreted and applied. It also remains to be seen whether this provision will be successfully included in the reconciliation bill. In any event, if this issue is of interest, Bray's analysis is definitely worth a read.

Comments

[Longtobefree]

It is illogical to the general population how a district court can issues orders beyond the limits of that district.
Why have districts if any judge can rule the entire country?

[hobie]

I don't recall you MAGA protesting all the injunctions coming out of the judge-shopped Kacsmaryk court. I wish I had a nickel for every time you homies committed hypocrisy

[Supremacy Claus]

A better bond is 10% of assets. For Commie front organizations, the bond should include financial statements, and 10% of the assets of the top 5 donors. This fraction would allow poor people access to the court for injunctive relief. It would insure sincerity, and end frivolous harassment. It would deter lawfare a little bit.

[y81]

I highly doubt that the general public has any thoughts on the matter, or that their respect for the judicial system would be improved by learning that certain federal actions are illegal in some judicial districts but not in others. If fact, shocking as it may be to some, I doubt that most Americans know what judicial district they are in.

[thesafesurfer]

In theory it should not make a difference what judicial district an American resides in. It should be no different than knowing the Federal Reserve district you live in.

[Stupid Government Tricks]

Then you believe that, for instance, a murder conviction should only apply with the jurisdiction of a court?

There's a basic conflict between district and national jurisdiction, and as long as it's up to lawyers and politicians, it will never be sorted out.

[Kazinski]

That's a stupid example, a court only has criminal jurisdiction in the state where the crime was committed. Thats Article 3 Section 2.

Then of course once the conviction is final of course applyies nationwide, but that's true of civil court judments too, when they are final.

[David Nieporent]

It is illogical to the general population how a district court can issues orders beyond the limits of that district.
Why have districts if any judge can rule the entire country?

There are lots of things that ignorant people don't understand. That's an argument against listening to ignorant people, not an argument against doing those things.

Again: courts issue orders to the litigants before it. Those orders are effective everywhere. The geographical districts limit who the courts can exercise jurisdiction over — not where their orders are effective.

[NvEric]

exercise jurisdiction over = where their orders are effective

[David Nieporent]

No. No. And no. Repeating the same ignorant comment doesn't make your comment somehow intelligent. Who, not where.

[bye]

Yes, this is the mind of the public, the great millions of voters.

[Krayt]

in an amount proper to pay the costs and damages sustained by the Federal Government

The idea the federal government is financially damaged, when it's been chonically and deliberately borrowing longer than most people have been alive, is ludicrous.

That it's a valid concern suddenly, to politicians, when they're happily borrowing enough, every day, to put someone 2/3rds the way up the Forbes billionaire list, is preposterous.

This is transparently punishment for the temerity of suing the government for wrongdoing and constitutional violations.

It probably meets rational basis, though! Rational basis, which doesn't even have "scrutiny" in its name, is a fraudulent lie created for the purpose of allowing politicians to pass laws for self-serving reasons, so they can get away with it.

"Right on!" screetch people, agreeing, many of rely on rational basis for innumerable fingers in pies, and whom just spent 8 years faceting about the false claim, instantiating innumerable government attacks against a political enemy, that it wasn't that but concern for rule of law.

Carl Sagan once said, "If two religions are in logical conflict, then one must be wrong. But if one, why not both?"

[Brett Bellmore]

"If somebody's already badly injured, due to their own actions, it's impossible to legally batter them, no matter what further injuries you inflict!" That seems to be the substance of your argument.

[Krayt]

I've adequately covered the facetious concern of government for costs.

[AmosArch]

If Mr Somin was really concerned in good faith about balance of power he'd propose a solution that balances the need to restrain the President with the need to restrain rogue district judges. Instead he ignores the latter entirely or at least I haven't seen him address it. Probably wants to let the judges run amok then the plan is when a Dem gets back into office he'll finally write a dissertation on ways to restrain right leaning lower judges and pretend he's being neutral.

[Krayt]

It should attack the problem directly, rather than creating a punishing workaround that intimidates citizens suing over their rights.

[Brett Bellmore]

Well, sure, ideally it's the judges who should suffer the consequences, as they're the ones violating Rule 65. But, by design, they're all but impossible to sanction.

[Sarcastr0]

This isn't a Somin post.

[AmosArch]

Somin is a part of the post and discussion so its not like I'm going off on some completely unrelated tangent. Are you the On Topic police for this thread?

[Sarcastr0]

You're absolutely going off on an unrelated tangent. Don't pretend you read the OP after such a strong demonstration that you did not.

We already have one bot so your quota is full; we don't need another.

[David Nieporent]

the need to restrain rogue district judges.

It's called appellate review.

[QuantumBoxCat]

Interest groups that seek to influence policy change via the courts will just need to start covering the cost of the bond. How many government policies are challenged in court by individuals with no connection to (or funding from) an interest group?

[y81]

Last I checked, the government does bad things to people all the time, like taking away their children or seizing their property. But if they're poor, now they're screwed, since they can't get a TRO.

[Krayt]

This is the purpose, to intimidate citizens.

And by the by, you'll get no argument from me many of these lawsuits are crypto politics suing for their own hidden reasons.

Hmmm, Carl Sagan said something...what was it?

Oh, yeah! The ancient Greeks figured out the Earth was round, because it's the only shape that casts a circular shadow, on the moon in this case, regardless of orientation. They then calculated the size of the Earth, YouTube videos on that. Then, knowing that, they looked at the Earth's shadow on the moon again, and thus knew how big the moon was. From that, they calculated how far away the moon was based on its angular size in the sky.

Or maybe it was a science column by Isaac Asimov. It's all good.

[bye]

Is that you, Hillary ?????

There is HItler, Stalin, and Mao, yes, y81
And then there is the American Founding.

Is that you , Hillary ???

[JoeFromtheBronx]

Justice Clint Bolick's discussion argues that judges could avoid the House measure having more than a nominal effect. It still had problems, but there was that useful escape hatch.

The argument there was that the Senate version has constitutional problems. The "more effective and harder to evade" part under that view is not an improvement.

[y81]

Is the measure limited to preliminary injunctions that reach beyond the district of the issuing judge? It doesn't say that. It seems like that is merely a pretext disingenuously invoked by Trump acolytes like Adler and Bolick. Also, how do you calculate the damages to the federal government from, say, being required to maintain birthright citizenship? And in a case where damages are calculable and large, does this mean that indigent plaintiffs can never obtain a TRO?

[agarrett]

That doesn't appear to be directly stated. However, the costs and damages of applying a restraining order to just the parties at hand should be relatively low - non-0, to be sure, but still lower. Costs become much larger when you make the order nation wide, which I suspect is the actual intent of the bill.

[y81]

Ok, so I’m an immigrant nail salon worker who just had a son. What are the costs of temporarily granting him citizenship, and how do I get a bond? Please be specific.

[bye]

CitizenPath and SimpleCitizen appear to be legitimate services that can help individuals prepare and file immigration applications. They both offer online platforms and support to assist users in completing required forms and gathering supporting documents.

[agarrett]

I'll give this a shot, but first let me be sure I understand the scenario. In this case, you're the, presumably illegal, immigrant nail salon worker. Your child was born in the U.S., and then President Trump issues his executive order saying children of illegal immigrants born in the U.S. do not get citizenship. You go to court challenging this on your son's behalf.
Now, my first problem is that I'm unsure what type of temporary restraining order you're asking for, for which you'd need to put up a bond. If they're trying to deport your son (and you, presumably), you could obviously ask for a TRO on the first part. I guess you could also ask for one preventing the government from pulling your son's social security number. At the moment, that's all I've got.
I don't know how the government, or the courts, calculates its costs - and I'd bet both try to inflate them, to be fair. In the second case, holding a single SSN, I'd assume you need to put a hold on whatever computer record is in place, plus check to make sure it's not overridden. My guess would then be on the order of $10/day, but since it's government work, let's go $100/day. The first one, I'll admit, could be more expensive if they're still deporting you, but you're asking them not to do so for your son (who I'm presuming is a minor), as child care is now involved. But that, honestly, would be messy either way.
So, yeah, at least in the latter case, costs seem bearable - unless you're asking for a nationwide injunction, in which case multiply them by ten million. And that, I suspect, is rather the point of the rule.

[Stupid Government Tricks]

I love it when they say the quiet part out loud.

Bray also notes the effect of this provision (should it be adopted) will also depend on how it is interpreted and applied.

What was that about Rule of Law instead of Rule of Men?

Here's a great phrase from Wikipedia:

Legal scholars have expanded the basic rule of law concept to encompass, first and foremost, a requirement that laws apply equally to everyone. "Formalists" add that the laws must be stable, accessible and clear.

So much clarity, they have to pass it and then fight for who knows how long to find out what it means!

[pts]

If Congress is aiming at national injunctions with this provision, they miss. But they shouldn't have to even try. The judicial power of the federal courts extends to cases and controversies. That is, the case before the court. Not the case before the court and the cases of everyone else who hasn't sued (subject to the expansion on that principal contained in Rule 23--class actions--which have their own specific rules that Congress has approved). Yes, this is messy. Different district courts can come to different conclusions. People without the means to sue get no relief at all. Circuit Court decisions, binding on all District Courts in the Circuit can contradict the decisions of the Circuit Court in another circuit. But at the top of it all is the Supreme Court, which can resolve the differences after seeing the various opinions of a variety of District and Circuit Court judges. National injunctions bypass all of that. The first district court that rules against the executive or legislative branch controls governmental policy. There is a good argument that national injunctions violate the case or controversy language of Article 3.

[y81]

So you would also prohibit giving universal effect to permanent injunctions, after full hearings on the merits. So the government can deny social security benefits to 50 people because they voted for Biden, and all 50 sue and win, but the government can do it to a 51st person?

[ReaderY]

.In China, which had a rule that courts coild only adjudicate individual complaints, the government would simply hire gangsters to kidnap would-be complainants to prevent them from entering courtrooms to file complaints. No complaint filed, no complaint, no problem. Did our Founding Fathers really intend us to have a similar system?

[thesafesurfer]

At the district level, yes.

[bye]

A silly fairy tale setup.
Is that you, Hillary ??

[pts]

Yes I would. Courts resolve disputes between the parties. If you're not a party, there is no relief. Now in the case you propose, I suppose they could use Rule 23 to create a class, though that would involve the notice, opt-out, and other provisions of the rule. They don't want to do all of that (in your hypothetical) but that is what Congress has provided. Of course, your hypothetical is a little over the top. How about the president has authorized early social security benefits to disabled people, notwithstanding an ambiguous statute. Should the injunction that a (evil) court issues prohibiting it apply nationally or only to the parties in the case

[ReaderY]

Do we really want the Chinese system where the government can keep courts from adjudicating complaints by the simply expedient of kidnapping would-be complainers before they can enter a courtroom to file complaints? Letting people use lawyers doesn’t help. If someone is prevented from contacting a lawyer, that person is SOL.

[not guilty]

Courts exist for the benefit of plaintiffs; defendants (in civil cases) have no need of them.

The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). A preliminary injunction against the government should not issue unless the plaintiff has made an evidentiary showing that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id., at 22.

If the District Court issuing a preliminary injunction against the federal government has followed the applicable law, the issuance thereof represents a determination that, in essence, the feds have or are seeking to disrupt the status quo ante to the detriment of the plaintiff before a full hearing on the merits can be had. For Congress to impose an onerous bond requirement on a plaintiff in an Article III court, who has met a pretty stringent showing, would impinge upon the constitutional separation of powers.

Congress should stick to legislating, and let the Article III judges do the judging.

[Lee Moore]

Your last line is of course absurd. We are discussing a piece of proposed legislation.

The power of the judiciary to make TROs is a statutory creation. Congress is merely tweaking its own statute. As a result of its disapproval of how the judiciary is currently interpreting the current text.

You seem to belong to Sarcastro’s weird cult that insists that judicial independence requires that the judiciary should not be constrained to abide by the terms of actual statutes, unless it finds them to its liking.

[thesafesurfer]

Judicial independence is a fallacy. The judiciary is a non-elected political branch of government that abandoned its true role as an neutral interpreter of law long ago. The elected legislative branch restraining the power of the judicial branch is a welcome development.

[pts]

Agreed. Some forty or so years ago I worked for a state department providing law clerks to lower court judges appointed to the court of appeals to clear out the docket backlog. They ranged from drunks, to whackjobs, to really good judges. Anyone who wants to put national policy in the hands of lower court judges (even federal judges who presumably are somewhat better vetted) is playing craps with the country.

[A Japanese Student]

The proper way of restraining judiciary is by amending substantive laws, so that things previously ruled unlawful becomes lawful. Or even a constitutional amendment.

Imposing a procedural bar against otherwise valid claims, especially as a form of retaliation, is not a good idea.

[Kazinski]

This seems like the thing a King would do if 51 of them were elected to the Senate and 220 kings were elected to the house.

And no its not supposed to be a comprehensible argument, but its topical.

[bye]

More utterly deformed analogies posing as thinking.
"Seems like a thing" --- Is that you , Hillary ???

[JonFrum]

Not a word about executive independence. District courts are not 'supreme' over the executive. All three branches of government are independent of each other - they balance each other. No where in the constitution does it say that the judiciary has power over the executive. The three branches are meant to check each other - that means that both Congress and the executive have the power to check judiciary overreach. And it's about time that Trump finally check the power of mere district court judges. If the Supreme Court won't do it, the president needs to. It has nothing to do with partisanship - grow up.

[SRG2]

I like this idea - "your honor, according to my calculations [hands document to judge]. an injunction will save the Federal government millions of dollars, and hence my bond should be no greater than one dollar".