A federal judge on Saturday ordered planes carrying hundreds of violent Venezuelan gang members to turn around and return to the United States. Some were deported anyway and now the judge is demanding to know if the Trump administration defied his order.
Judge James Boasberg held an emergency hearing Monday and ordered the government to produce further details on the flights and passengers by noon on Tuesday.
Meanwhile, the fight is escalating.
Democrats are crying constitutional crisis, and on Monday the Department of Justice filed a motion to dissolve the temporary restraining order and requested that the judge be removed from the case.
The drama is overblown. There is an easy answer to the question of whether the administration is defying a court order. There was nothing to defy. Boasberg’s order was invalid on its face—because it did not include a bond.
Federal judges are bound by the Federal Rules of Civil Procedure, which have the force of law. Rule 65(c) explicitly states that judges “may issue a preliminary injunction or temporary restraining order only if the movant” posts a bond to cover “the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
Here, those costs include, at a minimum, the expense of turning planes around and housing hundreds of violent criminals in American jails for at least 14 days under Boasberg’s expanded order shielding all Tren de Aragua gang members in the U.S. Based on the hourly cost of deportation flights and daily incarceration rates, the required bond should be at least $2.5 million.
Yet nowhere in his order did Boasberg require these violent thugs to post bond.
Fortunately, President Donald Trump has begun to raise the alarm. On March 11, he issued a memorandum directing agencies to “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 wrongly issued injunction.”
There is no valid basis for judges to refuse.
Liberal judges claim bonds are discretionary, but legislative history proves otherwise. The 1911 Judicial Code granted judges discretion to require injunction bonds. However, in 1914, Congress explicitly repealed that provision, making bonds mandatory.
Similarly, while Rule 65(c) allows judges discretion in setting the bond amount, the rule mandates that it be “such sum as the court deems proper” to cover the costs of an erroneous injunction. That sum is not zero or de minimis.
Some conservatives hesitate to demand injunction bonds. They shouldn’t.
Conservatives suffer disproportionately from national injunctions. Between 2001 and 2023, two-thirds of all national injunctions targeted Trump’s policies. Deterring such injunctions is overwhelmingly beneficial.
Bonds are also the cleanest solution. Impeaching activist judges is a nonstarter—removal requires a two-thirds Senate vote, and Democrats won’t cooperate. Congressional proposals to ban national injunctions or establish special courts will face Democrat opposition and legislative delays. DOJ has asked the Supreme Court to intervene, but the Court’s conservative majority has been inconsistent. Even if the Court bans national injunctions, activist judges can bypass the restriction by using class action designations—precisely how Boasberg shielded more gang members from deportation. Instead of asserting national authority, he simply certified them as a class entitled to protection.
Liberal activists deliberately sidelined the bond requirement to advance their agenda.
A 1985 law review article lamented that the bond requirement “effectively blocks the litigation of public interest suits by preventing public interest plaintiffs from obtaining preliminary injunctions.” It urged courts to exempt such plaintiffs “whenever necessary to ensure judicial access.”
Sympathetic judges took the cue. Without any real analysis, they created a “public interest exception” based on the false premise that bonds are discretionary. It’s time to expose this deception and dismantle it.
There is no basis for a public interest exception. Rule 65(c)’s language is clear, admitting no exceptions. Congress explicitly mandated bonds in 1914, rejecting contrary policy arguments. Moreover, a public interest exception is unworkable because it is inherently subjective: Who decides what constitutes the “public interest”?
For example, Boasberg believes shielding violent criminal gang members from deportation serves the public interest. The 77 million Americans who voted for border security in 2024 disagree.
Americans have a fundamental right to the policies they voted for. The bond rule protects that right by deterring frivolous lawsuits from activist groups and forcing them to reimburse taxpayers for unwarranted delays.
Bonds are not a bureaucratic formality—they are an indispensable safeguard. The Supreme Court has ruled that “a party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond.”
The law is clear: Rule 65(c) makes posting a bond a precondition for obtaining a stay. Without a bond, the stay is invalid—and the government should not honor it.
Dan Huff served as a lawyer in the Trump White House and the House and Senate Judiciary committees. He is a former deputy assistant secretary at HUD and McKinsey & Company consultant. He graduated from Columbia Law School. Follow him on X @RealDanHuff.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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