The End of the Road for the Injunction-Bond Proposals?

Injunction bonds are hot. There have recently been House and Senate proposals to give teeth to the requirement—in Federal Rule of Civil Procedure 65(c)—that any non-federal litigant getting a preliminary injunction or temporary restraining order has to provide adequate security.

But it seems that now the denouement of those proposals has arrived. The Senate parliamentarian has ruled that the Senate version cannot be in the reconciliation bill (h/t Jaimie Dupree). And the House bill is likely unconstitutional and likely unpassable given its dramatic unintended consequences, so that’s probably that.

Yet Rule 65 is still there. It still says federal courts may issue these interlocutory orders “only” if proper security is given. And the policy reasons that courts should take this requirement seriously—if courts don’t, they are systematically treating the regulatory costs of PIs as zero, which seriously distorts the equitable calculus—well, those reasons are still there.

The issue won’t go away, because the effect of PIs (at least in a world with universal injunctions) is so severe on federal action. And this is true regardless of the president. Any administration that wants to actually do something in the world—Republican or Democrat—is going to have an interest in lowering the barriers to government action. And that includes taking into account the costs to government action from wrongly granted PIs and TROs.

Brief recap:

If you want the policy arguments for federal courts following the injunction-bond requirement, see The Purpose of the Preliminary Injunction.

If you want evidence that the injunction-bond requirement is usually ignored in suits against the federal government, see Preliminary Injunction Realism.

If you want my analysis of the different proposals, see here on the House version and here on the Senate version.