President Donald Trump and his allies are pursuing an alternative strategy to defend against mounting court orders blocking his policies: Raise the financial stakes for those suing the administration.
Republicans want to force people suing the U.S. to post financial guarantees to cover the government’s costs if they win a temporary halt to Trump’s policies but ultimately lose the case. A measure in the House’s “big, beautiful” tax-and-spending bill would condition a judges’ power to hold US officials in contempt for violating their orders to the payment of that security.
A new proposed version of the bill announced by Senate Republicans on Thursday removes the contempt language but would broadly restrict judges’ discretion to decide how much of a security payment to order from challengers who win initial pauses to Trump’s policies, or to waive it altogether.
While the legislation faces hurdles, the push to make suing the government more expensive is gaining steam. Critics say it’s part of a broader effort to discourage lawsuits against the Trump administration.
In addition to the tax bill provision, Republican lawmakers have introduced a plan to require plaintiffs who lose suits against the administration to cover the government’s legal costs. Meanwhile, Trump has directed the Justice Department to demand bonds from court challengers when judges temporarily halt his policies. Trump has also targeted law firms over everything from past work for Democratic rivals to their diversity policies.
Courts historically haven’t required bonds to be put up in lawsuits against the government. In recent cases, the Trump administration’s bond requests included $120,000 in litigation over union bargaining and an unspecified amount “on the high side'” in a fight over billions of dollars in frozen clean technology grants. Judges in those and other cases have denied hefty requests or set smaller amounts, such as $10 or $100 or even $1.
“Having to put that money up is going to prevent people from being able to enforce their rights,” said Eve Hill, a civil rights lawyer who is involved in litigation against the administration over the treatment of transgender people in U.S. prisons and Social Security Administration operations.
The Trump administration has faced more than 400 lawsuits over his policies on immigration, government spending and the federal workforce, among other topics, since his inauguration. A Bloomberg analysis in May found that Trump was losing more cases than he was winning.
White House spokesperson Taylor Rogers said in a statement that “activist organizations are abusing litigation to derail the president’s agenda” and that it is “entirely reasonable to demand that irresponsible organizations provide collateral to cover the costs and damages if their litigation wrongly impeded executive action.”
Dan Huff, a White House lawyer during Trump’s first term, defended the idea but said the language needed fixes, such as clarifying that it only applies to preliminary orders and not all injunctions. Huff, whose op-eds in support of stiffer injunction bonds have circulated among Republicans this year, said that Congress wanted litigants “to have skin in the game.”
Some judges have already found in certain cases that the administration was failing to fully comply with orders. Alexander Reinert, a law professor at Cardozo School of Law, said the timing of Congress taking up such a proposal was “troubling and perverse.”
‘Defy logic’
Some efforts by the Trump administration to curb lawsuits have already paid off. By threatening probes of law firms’ hiring practices, the White House struck deals with several firms that effectively ruled out their involvement in cases challenging Trump’s policies.
Other aspects of the effort have been less successful. Judges have overwhelmingly rebuffed the Justice Department’s efforts that plaintiffs put up hefty bonds. A judge who refused to impose a bond in a funding fight wrote that “it would defy logic” to hold nonprofit organizations “hostage” for the administration’s refusal to pay them.
Several judges entered bonds as low as $1 when they stopped the administration from sending Venezuelan migrants out of the country. In a challenge to federal worker layoffs, a judge rejected the government’s push for a bond covering salaries and benefits, instead ordering the unions that sued to post $10.
The clause in the House tax bill tying contempt power of judges to injunction bonds was the work of Trump loyalists. Representative Andy Biggs, a Republican member of the House Judiciary Committee, pushed to include the provision, Representative Jim Jordan told Bloomberg News. Jordan, who chairs the committee, said Biggs and Representative Harriet Hageman, another Republican, were “very instrumental in bringing this to the committee’s attention.”
Biggs’ office did not respond to requests for comment. Hageman said in a statement that the measure will “go a long way in curbing this overreach whereby judges are using their gavels to block policies with which they disagree, regardless of what the law may say.”
Liberals have slammed the proposed clause in the tax-and-spending bill as an attack on the judiciary, but it may not be the controversy that dooms it in the Senate. Reconciliation, the process lawmakers are using to pass the bill with only Republican support, requires the entire bill to relate directly to the budget.
‘Make it happen’
Several Republicans have expressed skepticism that the measure can survive under that process. But, Jordan, the House judiciary chair, said Republican lawmakers will seek an alternative path to pass the measure if it’s ruled out in the Senate. “I’m sure we’ll look at other ways to make it happen,” Jordan said.
The bond fight stems from an existing federal rule that says judges can enter temporary restraining orders and preliminary injunctions “only if” the winning side posts a security that the court “considers proper.” The bond is to cover “costs and damages” if they ultimately lose.
University of Notre Dame Law School professor Samuel Bray, a proponent of injunction bonds, said courts should account for whether litigants have the ability to pay. Still, he said, defendants should be able to recover some money if a judge’s early injunction — a “prediction” about who will win, he said – isn’t borne out.
“If courts routinely grant zero dollars, what they are doing is pricing the effect of a wrongly granted injunction on the government’s operations at zero,” Bray said.
Courts have interpreted the rule as giving judges discretion to decide what’s appropriate, including waiving it, said Cornell Law School Professor Alexandra Lahav. The bond issue usually comes up in business disputes with “clear monetary costs,” she said, and not in cases against the federal government.
“It’s not clear to me what kind of injunction bond would make sense in the context of lawsuits around whether immigrants should have a hearing before they’re deported,” Lahav said. “I’m not really sure how you would price that.”
