06/02/2025
HR 1 was passed by the US House and is pending in the US Senate. It would deprive US courts of the ability to enforce any injunction or temporary restraining order already entered or entered in the future by a US court that is not supported by security (bond).
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HR 1 Provides:
SEC. 70302. RESTRICTION ON ENFORCEMENT.
No court of the United States may enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.
FRCP 65 (c) provides:
(c) Security. 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. The United States, its officers, and its agencies are not required to give security.
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Despite the language of Rule 65, courts waive the security requirement in extraordinary circumstances such as the enforcement of constitutional rights or the indigency of the moving party. The prevailing thought has been that enforcement of constitutional or other rights should not be the exclusive province of the well-heeled movant, to the exclusion of those without the means to post the security.
HR 1 doesn't prevent courts from issuing injunctive relief with waivers of security, but it takes away courts' ability to enforce injunctions without security, which has the same effect and may have the additional effect of encouraging the enjoined to defy courts. Is that what the House of Representatives aims to do? Will vindication of constitutional rights become a privilege of wealthy and well-funded interest groups? Can this provision of HR 1, if it survives in the US Senate, withstand a constitutional challenge?
