Does the Senate Reconciliation Bill Contain a Threat to Judicial Independence? Or Is It a Welcome Limit on Universal Injunctions?

Last month I noted a provision in the “Big, Beautiful Bill” (sic) that would place limits on the issuance of preliminary injunctive relief against the federal government. The provision was apparenly inspired (at least in part) by this Wall Street Journal op-ed.

Though largely a means to ensure compliance with FRCP 65(c), the provision may have also been overbroad and had a retroactive effect.

The Senate has adopted a similar measure, albeit one that is different in multiple respects. My co-blogger Ilya Somin notes Justice Clint Bolick’s deep concerns about the provision here. Over at the Divided Argument substack, Samuel Bray offers a more sanguine take, calling the Senate provision a “vast improvement.”

Here is the text of the Senate version:

No court of the United States may issue a preliminary injunction or temporary restraining order against the Federal Government (other than a preliminary injunction or temporary restraining order issued in a case proceeding under title 11, United States Code) if no security is given, in an amount proper to pay the costs and damages sustained by the Federal Government, when the injunction or order is issued pursuant to rule 65(c) of the Federal Rules of Civil Procedure after the date of enactment of this Act. No court may consider any factor other than the value of the costs and damages sustained when making its determination of the proper value of such security, and that determination shall be appealable upon issuance of the preliminary injunction or temporary restraining order under an abuse of discretion standard.

In Bray’s view,

the Senate version is a dramatic improvement over the House version—it avoids the serious constitutional problems that were likely to doom the House bill, and it is more effective and harder to evade in requiring meaningful injunction bonds in suits against the federal government. The effect of that change will be to give more weight in the preliminary injunction calculus to the regulatory cost of preliminary injunctions to the federal government—not just in the current administration, but in future administrations, both Republican and Democratic.

That does not mean the provision is perfect. Bray also notes the effect of this provision (should it be adopted) will also depend on how it is interpreted and applied. It also remains to be seen whether this provision will be successfully included in the reconciliation bill. In any event, if this issue is of interest, Bray’s analysis is definitely worth a read.

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