In a previous post, I criticized a dangerous provision of the Senate version of Trump’s “Big Beautiful Bill” that would radically undermine judicial protection for constitutional rights by requiring litigants seeking preliminary injunctions against illegal federal government actions to post potentially enormous bonds. There, I highlighted a critique by Arizona Supreme Court Justice Clint Bolick, who was previously a prominent libertarian public interest litigation.
Yesterday, a coalition of major, mostly libertarian and conservative, – public interest group leaders submitted a letter to the Senate opposing this provision and urging Congress to reject it. Signatories include leaders of the Firearms Policy Coalition (which organized the letter), the Institute for Justice, FIRE, the Goldwater Institute, the Liberty Justice Center, and more. Here is an excerpt from the letter:
We write as a coalition of organizations who rely on the federal judiciary to uphold
constitutionally protected rights and serve as a check on unlawful government action. We
are gravely concerned about a proposed provision in the Senate Judiciary Committee’s
language of the reconciliation package (Subtitle B, Section 203 of H.R. 1, the One Big
Beautiful Bill Act) that, if enacted, would mandate that courts require security in order to
issue a temporary restraining order or preliminary injunction against the federal
government, effectively shutting down access to justice for most Americans.
As it stands today, this provision would require a bond that covers the “costs and
damages” sustained by the government if it were to ultimately prevail in the case. We’re
talking upwards of millions, if not billions, of dollars that could be required upfront,
effectively shutting off people’s ability to enjoin the federal government from causing
irreparable harm….This is not a partisan issue—it’s a direct threat to constitutional accountability. If
enacted, this provision could seriously impair meritorious public interest litigation across the board, no matter the issue or ideology. The substance of a claim wouldn’t matter. What would matter is whether the plaintiff can afford to pay. Access to justice would hinge on wealth, not merit, leaving Americans of all political stripes without recourse when their rights are violated.The courts use temporary restraining orders and preliminary injunctions to prevent
unconstitutional or illegal policies from taking effect while a case is being litigated. This is often the only way to avoid immediate and irreversible harm, censorship of protected speech, illegal regulations that destroy livelihoods, or restrictions that prevent the peaceable exercise of constitutionally protected freedoms. These injunctions are only granted when a court determines the plaintiff is likely to prevail and that the harm without relief would be serious.But under this provision, a plaintiff’s ability to obtain that critical protection would
depend not on the merits of their case, but on their ability to pay a potentially astronomical bond up front….This is not legal reform. This is a financial blockade on constitutional accountability.
It rigs the system in favor of unchecked federal power, and it sends a chilling message:
unless you’re wealthy, don’t bother trying to protect your rights.If this provision is enacted, it won’t matter what political party is in power: its impact will be felt by everyone. Whether the issue is freedom of speech, religious liberty, due process, or any other fundamental freedom, this kind of legal barrier puts them all at risk in a “heads I win, tails you lose” framework—with the federal government on top.
No government should be allowed to insulate itself from judicial review by making it
prohibitively expensive for Americans to petition the government for redress and seek to protect their rights through restraining orders and preliminary injunctions, often the last line of defense before suffering irreparable harm.
I agree completely! I would add that this provision creates a perverse incentive for government officials to actually increase the scale of their illegal policies. The larger the scale, the higher the potential costs “suffered” by the government if it is unable to immediately implement them. Challenging the illegal detention of a thousand people will probably require a bigger bond than challenging that of one or a few. Challenging the illegal seizure of a large amount of property would require a larger bond than challenging that of a small amount. And so on.
In my earlier post, I made a few additional points that bear repetition here:
Right now, Republicans are seeking to enact these restrictions in order to block injunctions constraining a GOP administration’s policies. But, as Bolick notes [the coalition letter makes this point, as well], 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 it 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.
It may be that this provision will be ruled out of order, because it violates the “Byrd Rule,” which restricts the range of policies that can be enacted through reconciliation bills, bypassing the Senate filibuster. If not, Congress should strip this unjust and dangerous policy from the bill.
NOTE: As regular readers know, I have longtime associations with some of the groups that signed the coalition letter. for example, the Institute for Justice and I have worked together on various property rights issues, and I was a summer clerk there when I was a law student. Currently, the Liberty Justice Center and I are working together on the tariff case, where I am co-counsel along with several LJC attorneys.
