A Trump administration memo issued to executive branch department and agency heads on March 6 stated that “it is the policy of the United States to demand that parties seeking injunctions against the Federal Government must cover the costs and damages incurred if the Government is ultimately found to have been wrongfully enjoined or restrained.” The memo has been widely misinterpreted by social media users as a crackdown on “activist judges” and frivolous lawsuits, and it has created confusion over the enforcement of a federal rule that nominally requires plaintiffs to pay a security bond to cover losses incurred by “any party found to have been wrongfully enjoined” by a preliminary injunction.
Exx ➠Alerts, a right-wing news aggregator with more than 450,000 followers on X, tweeted on March 6, “BREAKING: Trump signs Executive Order holding those who challenge administration policies in court FINANCIALLY LIABLE when they lose the case.” Six minutes after that tweet was posted, Derrick Evans, a January 6 convict and former West Virginia state delegate, tweeted the same claim, verbatim.
On March 12, Paul A. Szypula, a right-wing internet personality with nearly 300,000 followers on X, offered a summary of the memo. “In other words, if you sue just to block the government, and you have no case,” he tweeted, “then you’ll pay for it.” Gateway Pundit, a far-right blog and the source of numerous previous Dispatch Fact Check articles, tweeted a headline to one of its posts on March 13. “Trump Signs Executive Order Cracking Down on Radical Activist Judges and Farleft Groups Abusing Courts — Demands to Pay Court Costs to Stop ‘Frivolous’ Injunctions Costing Taxpayers Millions.”
President Donald Trump’s memo—which is not an executive order, meaning the president has no obligation to cite legal authority when issuing it and it is not required to be printed in the Federal Register—directed executive agencies and departments to ensure enforcement of a federal rule, Civil Procedure 65(c). The rule states that before federal courts are allowed to issue a “preliminary injunction or a temporary restraining order”—a ruling that temporarily restricts the defendant’s action challenged in court until the court decides on the merit of the case—the suing party, or plaintiff, must pay “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.”
Ed Whelan, a distinguished senior fellow and Antonin Scalia Chair in constitutional studies at the Ethics and Public Policy Center, in June 2023 offered a helpful example of a preliminary injunction in National Review.
To understand what an injunction is, and what it is not, it is helpful to start off by considering an ordinary injunction in civil litigation between private parties. Let’s say that McDonald’s (as franchisor) sues an operator of one of a McDonald’s restaurant (the franchisee) for grossly violating the terms of the franchise agreement—let’s say, by serving dog food in lieu of approved hamburgers—and seeks a preliminary injunction to shut the restaurant down. In such an instance, it would be common for the court, if it were inclined to grant the preliminary injunction, to require McDonald’s to post a bond to pay damages suffered by the restaurant operator if the operator turns out to have been complying with the franchise agreement and thus to have been wrongfully enjoined. (Federal Rule of Civil Procedure 65(c) spells out this bond, or “security,” requirement for federal courts. State laws and rules provide similar requirements for state courts.)
For a court to issue a preliminary injunction, the plaintiff must demonstrate that it is likely to succeed on the broader merits of the case. (Building on Whelan’s McDonald’s example, if the franchisor seeks an injunction to shut down the restaurant on the basis that its hamburger buns have an improper number of sesame seeds, the court is unlikely to grant the injunction because the broader case is unlikely to succeed.)
Notably, the rule states that the United States and its federal agencies are exempted from paying the security bond when they are the suing party—but that’s not the only exception. The rule states that courts ultimately decide the amount of the security bond to be posted and, in many cases—such as when the plaintiff is challenging the federal government on constitutional grounds—that amount is set at $0. The reasoning is that, if a preliminary injunction is issued, costs incurred by the federal government can often exceed millions of dollars. Security bonds of that amount would price out many individuals and organizations challenging the federal government on constitutional grounds. “The security requirement would effectively deny plaintiffs the right to challenge unconstitutional government action,” the Foundation for Individual Rights and Expression’s Ronnie London said in a statement FIRE provided to The Dispatch Fact Check.
London pointed The Dispatch Fact Check to a recent example involving the security bond requirement: a federal case, National Association of Diversity Officers in Higher Education v. Trump. A group representing college diversity officers sued the Trump administration over an executive order that barred colleges receiving federal funding from promoting diversity, equity, and inclusion programs, seeking a preliminary injunction to temporarily block Trump’s order from taking place. On February 21, a federal court in Maryland issued the injunction and set a security amount at $0. “Because a bond of the size Defendants appear to seek would essentially forestall Plaintiffs’ access to judicial review,” U.S. District Judge Adam Abelson wrote in his ruling, “the Court will set a nominal bond of zero dollars under Rule 65(c).”
The Trump administration’s memo, issued 13 days after the federal court granted that injunction, disagrees with this reasoning. “Injunctions can cost taxpayers millions or even billions of dollars,” the White House said in a March 6 fact sheet. If courts were to end exceptions for litigation filed on constitutional grounds, the White House argues, that would result in fewer injunctions issued, and more savings for American taxpayers. “Consistent enforcement of this rule is critical to ensuring that taxpayers do not foot the bill for costs or damages caused by wrongly issued preliminary relief by activist judges,” Trump’s memo stated.
However, such enforcement authority does not lie with the executive branch. That rule clearly states that courts determine the security amount. Even if the president disagrees with courts that set that amount to $0, discretion lies with the courts and not the executive branch.
Instead, the Trump administration memo directed heads of federal agencies and departments to “demand that parties seeking injunctions against the Federal Government must cover the costs and damages incurred if the Government is ultimately found to have been wrongfully enjoined or restrained.” In other words, Trump made it executive branch policy for agency heads to explicitly ask courts for a specific security amount in these cases.
Whether the courts agree with that requested amount, choose a lower amount, or continue with $0 exemptions for litigation on constitutional questions, remains a judge’s decision and not the president’s. “We’re hopeful the line will hold, as it should, exempting public-interest constitutional litigation,” London said. “But until we see courts reaffirm that in the wake of the memo, plaintiffs and their counsel may be justified feeling just a little uncertain how this all plays out.”
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