Last month, I focused on the provisions of the “big, beautiful bill” (sic), which would limit the issuance of preliminary injunctive relief to the federal government. This provision was (at least in part) fascinatingly inspired this Wall Street Journal op-ed.
However, this is mainly used to ensure compliance. FRCP 65(c)this provision is also overflowing and may have had a retrospective effect.
The Senate has adopted similar measures, although different in several respects. My co-blogger, Ilya Somin, notes Judge Clint Borick’s deep concern about the provisions here. In a subsack of divided arguments, Samuel Bray offers a more optimistic takecalling the Senate provisions “significant improvements.”
The Senate version of the text is as follows:
A US court may not issue a temporary injunction or temporary restraining order against the federal government (excluding a temporary injunction or temporary restraining order issued against the federal government if it is not granted by the federal government, if it is issued to control the federal government control after the Federal Government ACT, if it is issued to control the federal government control, if it is to be appointed to control the federal government control 65(c)). The Court will not consider factors other than the value of costs and damages maintained in determining the appropriate value of such security. The decision must also be appealable upon issuance of a provisional injunction or temporary restraining order based on abuse of discretionary standards.
In Bray’s view,
The Senate version is a dramatic improvement over the House version, and is more effective and difficult to avoid serious constitutional issues that are likely to doom the House bill, and when demanding meaningful injunction debt in cases against the federal government. The impact of that change is that future administrations, not just current administrations, but also Republican and Democrats, will give more weight in the calculation of interim injunctions on the regulatory costs of preliminary injunctions to the federal government.
That doesn’t mean that regulations are perfect. Bray also points out that the effect of this provision (to be adopted) also depends on how it is interpreted and applied. It is also unclear whether this provision will be included normally in the settlement bill. Either way, if this question is interesting, Bray’s analysis is definitely worth reading.
