• What is happening? On March 11, 2025, President Trump issued an Executive Order (the “Order”) directing federal agencies and the Attorney General to “demand” that courts enforce Rule 65 (c). If complied with, a plaintiff seeking an injunction against the government will be required to put up a bond for their case to go forward. 
• Why it matters: Applying the rule broadly could strengthen the Trump administration’s attack on America’s system of checks and balances, as it would make it prohibitively expensive for public interest groups to challenge unlawful government actions in court. 
• Our position: The right to contest government actions in court is fundamental to our system of checks and balances. Requiring plaintiffs to post bonds before their cases can proceed would significantly undermine this right.

Why the Order? 

• This Order comes in the wake of an avalanche of lawsuits challenging the legal propriety of the government’s policies.   
• While the government has scored some victories, most notably by removing, with judicial blessing, whistleblower agency head, Hampton Dellinger, it has suffered many more defeats or delays along the way.  
• As of March 15, 2025, 46 federal court judges have issued temporary orders that halt the firing of civil servants and the Elon Musk-run Department of Government Efficiency’s (DOGE’s) access to sensitive government data. They have also issued orders to block the relocation of transgender women inmates to men’s prisons, the pursuit of immigrants inside houses of worship, and the freezing of about $3 trillion in federal funding to states.  
• While the government has sought the Supreme Court’s intervention in many of these cases, this Order smacks of a tactic to suppress strategic litigation against the Trump administration as its losses pile up. 

The Law and practice 

• Rule 65(c) of the Federal Rules of Civil Procedure states that a court MAY issue a preliminary injunction or temporary restraining order only if the person requesting it provides a bond to cover any costs and damages a wrongfully restrained defendant could incur. The Rule excludes the U.S. government and its agencies.  
• The decision to impose a bond is entirely up to the judge. For over 100 years, state courts refused a bond as a prerequisite to an injunction. Since the 1961 decision of the US Court of Appeals for the Second Circuit in the case of Ferguson v Tabah, federal courts have given judicial blessing to a judge’s discretion on the rule’s enforcement.  
• The general reluctance of judges to enforce the Rule continues to manifest as recent attempts by the government to invoke the rule have failed. On February 21, 2025, a federal judge in Maryland waived the bond requirement and issued a nationwide injunction against some of the government’s anti-DEI directives.  
• Similarly, on February 25, 2025, a federal judge in Washington, D.C., issued a nationwide injunction against the government’s policy that would freeze funding on distributions to federal aid programs. In her order, U.S. District Judge Loren AliKhan, flatly rejected the idea of a bond requirement.