Silencing civil rights with a price tag

In March, President Trump issued an executive order directing Department of Justice attorneys to request a security bond in every lawsuit in which the plaintiffs seek preliminary relief. This policy--which represents a stark departure from the norm--will likely have a chilling effect on civil rights advocates' ability to challenge unconstitutional government action.

Federal Rule of Civil Procedure 65 provides that "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." Nonetheless, judges typically waive the Rule 65 bond requirement if they find that putting up financial collateral as a condition for an otherwise warranted injunction "effectively den[ies] access to judicial review." People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985). In February, for example, federal judges in Washington, D.C. and Maryland declined to impose bonds in cases challenging the administration's attempt to freeze federal funding and end "DEI" initiatives.

For the American Civil Liberties Union and other public interest legal advocates, this exemption is critical. Temporary restraining orders and preliminary injunctions are among the most powerful legal tools used to bring about systemic change. Impact civil rights lawyers independently investigate facts and exhaustively research the law prior to filing their case. Seeking preliminary injunctive relief provides an opportunity for meaningful judicial review of constitutional violations before litigants incur the enormous costs associated with civil discovery and trial. The development and systemic enforcement of constitutional rights and liberties largely occurs at the preliminary injunction phase, generally leading to permanent relief through settlement, a stipulated judgment, or some other final dispensation.

Previous administrations rarely sought injunction bonds in cases that raised constitutional claims brought by groups like the ACLU, though there have been notable exceptions at the state level. In Chang, et al., v. County of Siskiyou, 2:22-cv-01378, our client sought and won a preliminary injunction preventing the county from unfairly enforcing certain water ordinances against the local Hmong population. The county claimed that the cost of enjoining discriminatory enforcement--and the appropriate bond amount--was $20 million. In connection with its injunction, the court ordered our elderly client, who was living on a limited income, to pay a $56,300 bond for the injunction to take effect.

By normalizing these kinds of injunction bonds at the federal level, Trump's executive order creates additional financial obstacles to cases seeking judicial review of the administration's policies and conduct. Thus far, the DOJ has requested bonds in nearly every lawsuit the national ACLU has filed against the federal government this year. Although courts may not require bonds in every case, even the prospect of posting tens of millions of dollars-- and the risk of forfeiting that money if the government ultimately prevails--will surely deter groups from suing the Trump administration at all. This, of course, is by design.

More broadly, the security bond mandate is another brick laid atop a wall blocking constitutional litigants' access to court. The administration has dampened the private bar's willingness to take on cases adverse to the federal government by issuing punitive executive orders against a roster of law firms. Courts have limited the ability of organizations to serve as plaintiffs in civil rights cases. See Mi Familia Vota v. Fontes, 129 F.4th 691, 763 (9th Cir. 2025). And the U.S. Supreme Court recently held--contrary to the law in every circuit to consider the issue--that plaintiffs who gain only preliminary injunctive relief do not qualify as "prevailing parties" for purposes of collecting statutory attorneys' fees. Lackey v. Stinnie, 604 U.S. __, 145 S. Ct. 659 (2025).

Eventually, the wall will rise too high, the economic burdens of constitutional litigation will become too great, and a large swath of legally questionable government action will escape judicial review. As many have noted, the role of lawyers and judges in maintaining the rule of law has never been more critical. But the bar and bench matter less if we continue to erect financial barriers that prevent constitutional litigation from being filed in the first place.