Trump Administration Memo on Injunctions Sparks Misinterpretation and Confusion
A memo issued by the Trump administration in March 2024 aimed to enforce a federal rule requiring plaintiffs to cover costs and damages if the government is wrongfully enjoined. The memo, however, was widely misconstrued on social media as a presidential crackdown on "activist judges" and frivolous lawsuits, fueling confusion about the application of the existing federal rule. Right-wing news outlets and personalities inaccurately portrayed the memo as an executive order holding challengers of administration policies financially liable for unsuccessful lawsuits. This mischaracterization amplified existing anxieties about the perceived politicization of the judiciary and access to legal redress against government actions.
The memo, in reality, directed executive branch agencies to ensure enforcement of Federal Rule of Civil Procedure 65(c). This rule mandates that plaintiffs seeking preliminary injunctions or temporary restraining orders post a security bond to cover potential losses incurred by any party wrongfully enjoined. While the rule exists, it also allows for judicial discretion in setting the bond amount, including the possibility of a $0 bond. This discretion is frequently exercised in cases involving constitutional challenges to government actions, recognizing that substantial security requirements could effectively bar individuals and organizations from pursuing such litigation.
The Trump administration’s memo took issue with the practice of setting $0 bonds in constitutional challenges, arguing that such injunctions can cost taxpayers millions and that enforcing the bond requirement would deter frivolous lawsuits. The memo asserted that “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.” This framing, however, misrepresents the judiciary’s role in determining bond amounts and ignores the rationale behind waivers in constitutional cases.
The memo’s directive for executive agencies to “demand” coverage of costs and damages if wrongfully enjoined does not grant the executive branch new authority. The power to determine the amount of security, including whether to require any bond at all, remains solely with the courts. The memo’s practical effect is to instruct federal agencies to explicitly request specific security amounts from courts when facing injunction requests. Ultimately, judges retain the discretion to approve the requested amount, impose a lower amount, or continue the practice of $0 bonds for constitutional challenges.
Legal experts have noted that while the memo does not change the underlying legal framework, it introduces a new element of uncertainty. The Foundation for Individual Rights and Expression (FIRE) expressed hope that courts would uphold the existing practice of exempting public-interest constitutional litigation from bond requirements. However, the memo’s directive could potentially influence judicial decision-making, raising concerns about potential chilling effects on legitimate legal challenges to government action. The memo’s impact on future litigation remains to be seen, but it underscores the ongoing tension between the executive and judicial branches and the importance of accurate reporting and interpretation of legal developments.
The incident also highlights the rapid spread of misinformation, especially concerning complex legal matters, in the digital age. The mischaracterization of the memo as an executive order targeting activist judges illustrates how online narratives can distort public understanding of government actions and fuel unwarranted anxieties. Accurate and nuanced reporting, along with critical evaluation of information shared on social media, is essential to fostering informed public discourse about the workings of government and the rule of law.