Fact Sheet: President Donald J. Trump Ensures the Enforcement of Federal Rule of Civil Procedure 65(c)

TLDR

This ‘fact’ sheet attempts to explain an executive memorandum that directs federal agencies to enforce Rule 65©, requiring plaintiffs seeking injunctions against government actions to post financial security equal to potential costs if the injunction is later deemed wrongful. This may create financial barriers for smaller organizations challenging government actions, potentially limiting access to judicial review while strengthening executive authority.

President Trump has signed a memorandum directing federal agencies to enforce Federal Rule of Civil Procedure 65©, which requires parties seeking injunctions against the government to post financial security. This policy aims to ensure that plaintiffs requesting temporary restraining orders or preliminary injunctions against federal actions can cover potential costs if the injunction is later deemed wrongfully issued.

The memorandum instructs federal agency heads to:

• Request that courts require plaintiffs to post security equal to the government’s potential costs and damages from wrongfully issued injunctions
• Apply this requirement to all lawsuits seeking preliminary injunctions where monetary harm to the government can be demonstrated
• Justify security amounts based on reasoned assessments of potential harm
• Ensure courts deny or dissolve injunctions if plaintiffs fail to provide the required security

Federal Rule of Civil Procedure 65© already exists in law and states: “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in 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.”

This rule has long been part of federal procedure, but courts have often waived bond requirements or set nominal amounts, particularly in public interest litigation. The memorandum appears to be directing a more aggressive enforcement of this existing rule.

The memorandum could have several significant effects:

• Requiring substantial security bonds may create financial barriers for smaller organizations, nonprofits, and individuals seeking to challenge government actions, potentially limiting access to judicial review.

• While the memorandum frames this as protecting taxpayer funds, it may shift litigation costs to plaintiffs in a way that could deter legitimate challenges to potentially unlawful government actions.

• The policy could strengthen executive authority by making it more difficult for courts to temporarily halt executive actions while their legality is being determined.

The memorandum’s justifications contain several claims that warrant scrutiny. It:

• characterizes judges issuing nationwide injunctions as “activist” and overreaching. However, nationwide injunctions have been used by judges appointed by presidents of both parties and are a longstanding judicial remedy.

• suggests many lawsuits against the government are meritless and filed for political gain. However, many successful challenges to executive actions have identified genuine legal issues with government policies.

• cites a study claiming Trump-appointed judges are more productive, influential, and less partisan. This selective citation doesn’t acknowledge the broader academic debate about judicial appointments and their impacts.

This memorandum represents a significant attempt to change how the judicial system functions as a check on executive power by raising the financial stakes for those challenging government actions in court.