What if I told you that when federal district judges issue injunctions blocking President Donald Trump’s policies in a judicial insurrection, they were the ones breaking the law?
No, it’s not just because these judges are effectively usurping the authority of the president over the executive branch. It’s more clear-cut than that.
When Chief Judge James Boasberg of the U.S. District Court in Washington, D.C., issued an order demanding the Trump administration return reputed members of the Venezuelan gang Tren de Aragua to the U.S., he wasn’t just making immigration policy—he was violating a black-and-white rule laid down by the U.S. Supreme Court.
It’s called the Federal Rule of Civil Procedure 65(c). Here’s what it says:
The court may issue a preliminary injunction or a temporary restraining order only if the movant [that is, petitioner] 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.
What does that mean? It means that when the ACLU files a lawsuit against the Trump administration and asks the judge to issue an order forcing Trump to turn around, in midflight, the planes deporting violent gangbangers, the ACLU has to put up or shut up.
The ACLU has to put down a “security” payment when asking for the court order, just in case a later judge strikes down the order after it already cost the government money to follow it.
This commonsense requirement isn’t a Trump wish list item. It’s a rule with the force of law.
If the administration were to demand that judges follow this rule, it could stop the judicial insurrection in its tracks—or, at the very least, make the activists think twice before assuming they can dictate federal policy.
How the Judicial Insurrection Works
For those who haven’t heard, a cabal of leftist groups has filed lawsuit after lawsuit, asking courts to issue orders blocking Trump’s policies.
As I wrote in my book, “The Woketopus: The Dark Money Cabal Manipulating the Federal Government,” far-left activist groups sent their staff and ideas into the Biden administration, using the bureaucracy to force their agenda on the American people. Now that Trump has replaced Joe Biden as president, the same groups are working to undermine Trump’s agenda from outside the government.
The ACLU had previously urged the Biden administration to open the border. Now, it’s suing because Trump is deporting illegal aliens.
These activist groups file lawsuits in specific jurisdictions where they hope favorable judges will grant their sought-after orders.
For instance, when the ACLU sued the administration to prevent the Tren de Aragua members’ removal to El Salvador, it brought the case in Washington, D.C., rather than in Texas, where the gang members in question were detained.
While Boasberg issued an order demanding the return of those flights, the Supreme Court ultimately vacated his order, finding that the D.C. court didn’t have jurisdiction in the case.
This practice of “judge shopping” enables activist groups to succeed in early stages of litigation before ultimately failing when the case reaches the Supreme Court. This gives judges a chance to carry out a judicial insurrection. It also gives the case the appearance of success, motivating the leftist groups and their supporters, while tying up the government in the meantime—all in pursuit of a vain claim.
District court judges also have ordered the administration to rehire fired bureaucrats, to block Trump and Elon Musk’s Department of Government Efficiency from accessing government data, to restore deleted websites, and so much more.
How Would Rule 65(c) Help?
If judges follow Rule 65(c), they would require leftist groups like the ACLU to put their money where their mouths are.
When the ACLU asks Boasberg to issue an order demanding the return of planes carrying suspected Venezuelan gang members, the ACLU would have to fork over enough money to cover the return of those planes—and the detention of the suspects in U.S. facilities in the interim. That money would remain as bond, and the judge would return it to the ACLU if the ACLU ultimately succeeds in the lawsuit.
If, as in this case, the ACLU’s lawsuit fails, the government would receive that money to cover its costs.
Rather than rushing to file meritless lawsuits and motions asking for restraining orders that would ultimately be rejected, groups like the ACLU would have to think twice—because they would actually have skin in the game.
That might restrict the leftist lawfare complex to a few well-tailored lawsuits, rather than a barrage of legal claims. That would decrease the amount of time and money the administration spends to counter those claims, and enable the president to govern a bit more effectively.
Why Isn’t This Already Happening?
Trump knows this. In March, he issued a memo lamenting that when judges issue nationwide injunctions, “Taxpayers are forced not only to cover the costs of their antics when funding and hiring decisions are enjoined, but must needlessly wait for government policies they voted for.”
He directed the heads of executive departments “to ensure that their respective agencies properly request under Rule 65(c) that federal district courts require plaintiffs to post security equal to the federal government’s potential costs and damages from a wrongfully issued injunction.”
So, why isn’t the Department of Justice formally asking judges to enforce this rule?
The Foundation for Individual Rights and Expression may give a hint at the answer.
“Courts have long recognized exceptions for public-interest litigation, especially when it comes to those seeking to protect constitutional rights,” FIRE’s Ronnie London explained.
Perhaps the Justice Department is unwilling to press its rights on this issue because groups such as FIRE would like a public-interest exception.
But That’s Not the Rule
Still, Hans von Spakovsky, a senior legal fellow at The Heritage Foundation’s Center for Legal and Judicial Studies, told The Daily Signal, “There is no exception.”
Daniel Huff, who worked as an attorney in the first Trump White House, wrote about the issue for The Wall Street Journal.
He called the “public interest” exception “made-up” and “subjective.”
“This elitist conceit presumes that it is in the public interest to exempt activists from standard legal rules so they can block actions ordered by the president, for whom 77 million Americans voted,” Huff wrote.
He cited no less a judge than since-deceased Supreme Court Justice Ruth Bader Ginsburg, when she served on the U.S. Court of Appeals for the D.C. Circuit.
In National Kidney Patients Association v. Sullivan (1992), a district judge tried to invoke public interest to waive the security payment. A panel of the D.C. Circuit, which included future Justice Ginsburg, rejected the claim outright: “This completely overlooks a key purpose of the bond … to make plaintiffs consider the damage they may inflict by pressing ahead with a possibly losing claim.”
It seems the ACLU and its allies in the “Woketopus” need an incentive to consider the damage they may inflict with these relentless lawsuits. The Justice Department should do its part, follow Trump’s March 11 memo, and demand judges follow Rule 65(c).
This arrow has remained in the department’s quiver unused for too long—and Attorney General Pam Bondi should loose it at the judicial insurrection.
