April 8, 2025 • 16 mins
The American judiciary faces a legitimacy crisis as procedural shortcuts threaten to undermine court authority in politically charged cases. Rule 65(c) of the Federal Rules of Civil Procedure, requiring injunction bonds, stands at the center of a constitutional standoff between the Trump administration and federal courts over deportations authorized under the Alien Enemies Act.
• Federal Judge James Boasberg issued a temporary restraining order blocking deportation flights without requiring the plaintiffs to post an injunction bond
• The Trump administration argued the order was void from inception due to the missing bond required by Rule 65(c)
• The Alien Enemies Act, dating to 1798, grants presidents broad authority to detain foreign nationals during wartime
• The administration cited cyber attacks and espionage as justification for using this rarely-invoked law
• Three potential outcomes exist: the court acknowledging procedural error, the administration complying under protest, or a constitutional crisis
• Federal circuits have consistently ruled that absence of a bond can invalidate an injunction
• The controversy raises fundamental questions about whether courts must follow procedural rules to maintain legitimacy
Be sure to follow and subscribe so you don't miss our upcoming conversations on Apple Podcasts, Spotify, Amazon Music, YouTube, iHeart Radio or wherever your favorite podcasts are heard. Visit great-thinkers.com for exclusive content, and please rate us with five stars and leave a review on Apple Podcasts.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:10):
Welcome to Conversations with Great
Thinkers, where we explore theideas shaping our world and we
explore the people who championthem.
I'm your host, jim Lanshey, andtoday we're diving into a
conversation that strikes at thecore of democracy and the rule
of law, and that is the urgentneed for judicial reform in
(00:35):
these United States.
And welcome to this particularseries entitled Restoring
Justice Rebuilding Trust in theAmerican Judiciary, where we're
discussing one of the mostpressing questions of our time.
Can the American people trusttheir courts to be neutral
(00:57):
guardians of the law, or haveour courts become mere
extensions of the politicalbranches they were originally
designed to check?
In today's expanded episode,judges or Politicians in Robes
the Rise of JudicialPartisanship.
We're going to dive into thelegal and cultural forces
(01:21):
transforming our courts, fromideological appointments to
procedural overreach.
This episode is going tocombine two parallel stories one
which is rooted in the legaltechnicalities of Rule 65 and
federal injunctions, and theother in the growing perception
(01:45):
of a politicized judiciary.
Together, they paint a pictureof a judicial system under a
great deal of strain.
(02:07):
In early 2025, the Trumpadministration, amid rising
national tensions, used theAlien Enemies Act to justify
deportation flights of certainforeign nationals.
But a federal judge JamesBoasberg of the United States
(02:29):
District Court in Washington DCstepped in and issued a national
temporary restraining order tohalt those flights.
At the heart of the controversylies not just the immigration
policy, but a forgotten legalsafeguard, namely injunction
bonds.
But a forgotten legal safeguard, namely injunction bonds.
(02:49):
Rule 65c of the Federal Rulesof Civil Procedure requires that
a party seeking an injunctionput up a bond to cover potential
damages.
It's a rule meant to ensureresponsibility and fairness, yet
it's been routinely bypassed inpolitically charged cases like
this one.
So why has this basic rule oflaw been ignored?
Why hasn't the Department ofJustice challenged these
(03:11):
injunctions when plaintiffshaven't posted a bond?
And what does this say aboutthe expanding reach of federal
judges, who increasingly act asde facto policymakers?
Act as de facto policymakers.
In this episode, we'll explorehow procedural tools like
injunction bonds are reallymeant to check judicial
(03:32):
overreach and how their neglectthreatens the legitimacy of the
courts.
We'll also ask bigger questions, such as when judges wade into
political waters, what happensto the delicate balance of
powers between three branches ofgovernment that our
Constitution demands?
The heart of theadministration's position in
(03:55):
these particular cases is theirbelief that Judge Boasberg's
order is invalid, and theirargument Well what is it?
Order is invalid.
And their argument Well what isit?
It centers on that small,overlooked procedural
requirement buried in thefederal rules of civil procedure
.
Their position, essentially, isthat since there's no bond, or
(04:20):
perhaps just a de minimis bond,therefore there is no valid
order.
Let's take a little deeper diveinto the Alien Enemies Act of
(04:41):
1789.
It was one of fourcontroversial Alien and Sedition
Acts signed into law during thepresidency of John Adams, a
time when the young AmericanRepublic was still finding its
footing, amid fears of war withFrance.
Quoting amid fears of war withFrance.
(05:04):
The Alien Enemies Act, inparticular, granted the
president sweeping authority todetain or remove foreign
nationals from countries withwhich the United States was at
war.
It was a wartime tool rarelyused but very powerful.
Fast forward now to the 20thcentury and the act resurfaces
again, this time under PresidentWoodrow Wilson during World War
(05:26):
I, and yet again later underPresident Franklin D Roosevelt
during World War II.
These uses includedsurveillance, internment and
deportation of enemy aliens.
In both wars, especially inWorld War II, the Act was part
of the legal framework thatjustified the internment of
(05:48):
Japanese, german and Italiannationals.
Its legacy Well, that'scomplicated, powerful and
obviously, at this point, prettycontroversial.
Now, in 2025, the act has beenpulled off the legal shelf.
(06:08):
Yet once again, the Trumpadministration cited ongoing
national security threats, thistime involving state-sponsored
cyber attacks, espionage concern.
Espionage concern and what itlabeled as growing hybrid war
waged in the digital andintelligence arenas.
The administration issuedexecutive orders targeting
(06:31):
nationals from a small number ofadversarial states, countries
suspected of harboring cyberoperatives and intelligence
agents engaged in hostileactions against the United
States.
Within days, immigrationofficials began detaining and
preparing to deport hundreds offoreign nationals.
(06:53):
Civil liberties groups wereswift to respond.
Organizations like the ACLU,human Rights First and National
Immigration Law Center filedemergency lawsuits, arguing that
the policy violated due process, was overly broad and amounted
(07:16):
to racial and national origindiscrimination.
Now that's when Judge Boasbergstepped in.
Judge Boasberg, a formerpresiding judge of the US
Foreign IntelligenceSurveillance Court, commonly
known as the FISA Court, issueda temporary restraining order
(07:36):
that blocked the deportationflights pending judicial review
that blocked the deportationflights pending judicial review.
The order cited concerns aboutthe constitutionality of the
executive actions and thepotential harm to individuals
with no proven links to hostileactivities.
That ruling was immediate andcontroversial.
(07:57):
Cable news split alongpredictable lines.
Conservative commentatorsdecried the ruling as judicial
activism, while liberal analystspraised it as a necessary check
on executive overreach.
But behind the headlines, a farquieter, more technical issue
(08:17):
emerged.
The administration claimed thatJudge Boasberg's order was void
from the start, not because ofits logic or its language, but
because the plaintiffs failed topost a bond and, as previously
noted, under Rule 65C of theFederal Rules of Civil Procedure
(08:39):
, that failure could provedecisive, because injunctions
stop people from acting.
It turns out that if theinjunction was wrongly issued,
(09:03):
the defendant, which is oftenthe government, could suffer
real financial or operationalharm.
So these bonds deter frivolousor overly aggressive litigation,
and they also give thedefendant recourse if they are
harmed by a legally flawedinjunction.
The only exception to thesebonds is when the government
(09:25):
itself is seeking an injunction.
But in this case it was thegovernment that was being
enjoined, not doing theenjoining.
So the Trump administrationargued that, since no bond was
posted, the injunction or moreproperly, the temporary
restraining order never had anylegal effect.
(09:47):
And here's where the argumentfinds surprising legal strength.
Under well-established federalcase law, rule 65C has been
interpreted as mandatory, thatis, unless the court expressly
waives or sets the bond at zero,and even then the justification
(10:10):
has to be made clear.
Failure to post any bond at allcan void the injunction.
The government's refusal tocomply wasn't a blanket
rejection of judicial authority.
It was a procedural objectionrooted in the rules of civil
litigation.
Supporters called it defensiveconstitutionalism, refusing to
(10:36):
recognize judicial orders thatexceed the bounds of procedural
legitimacy, while critics calledit executive defiance.
But, as the administration'slegal counsel explained, when a
court steps outside theprocedural boundaries
established by Congress and therules of civil procedure, it
(10:57):
forfeits its authority toenforce.
Rule 65C is not window dressing, it's the price of halting
government action.
So where does all this go fromhere?
Well, there are three possiblescenarios.
The first is that the courtbacks down and acknowledges
(11:19):
procedural error and vacates thetemporary restraining order.
The second is that, if theadministration complies, under
protests challenging the orderon appeal.
And the third is aconstitutional standoff, with
the judge issuing contempt andthe administration refusing
(11:40):
enforcement.
Each path carries enormousstakes for the rule of law, for
the legitimacy of the courts andfor how future administrations
respond to rulings that theydon't like.
That they don't like.
(12:03):
Now let's take a moment to lookat precedent.
In several federal circuits,courts have ruled that the
absence of a bond can be fatalto an injunction.
For example, the Ninth Circuitin Nintendo of America versus
Louis Globe Toys, a case decidedin 1994,.
(12:24):
That case emphasized that thebond requirement is not optional
unless the trial courtexpressly rules that that is so.
Likewise, the DC Circuit rulesthat that is so.
Likewise, the DC Circuit thevery jurisdiction in which Judge
Boasberg sits has recognizedthe seriousness of failing to
observe Rule 65C.
(12:46):
So what happens when a courtskips this requirement?
Well, according to theDepartment of Justice, the
answer is clear the court'sorder is legally defective.
The administration thereforebelieved it was not in violation
of a lawful court order, but incompliance with a superior
(13:07):
legal rule that invalidated thecourt's order.
As one administration officialput it, you wouldn't obey a
warrant without a judge'ssignature.
So why should we obey aninjunction without a bond?
This framing gave theadministration a constitutional
(13:27):
high ground, at least in theirview.
It wasn't about ignoring thecourts.
It was about defending theintegrity of law against
procedural shortcuts.
Judge Boasport, for his part,threatened contempt proceedings.
But that raised anothercritical question Can a judge
enforce an order that is, by law, procedurally invalid?
(13:49):
Legal scholars remain divided.
Some argue that proceduraldefects do not strip a federal
court of jurisdiction.
Others insist that due processfor the enjoined party in this
instance the government requiresstrict compliance with Rule 65C
.
And here's the bigger issue Ifthe courts begin to ignore the
(14:12):
procedural safeguards in thenames of urgency or public
interest, they risk underminingthe very legitimacy they seek to
preserve.
So while it may seem like legalhair-splitting, the absence of
a bond in this case touched offa profound constitutional debate
.
(14:40):
We began this episode with aparadox, a technical rule with
sweeping consequences.
But this episode is much morethan just a discussion of Rule
65C.
It's about whether thejudiciary can still command
respect not just from citizens,but from the other branches of
(15:01):
government as well.
Because when court ordersbecome suggestions, when
compliance becomes conditionaland when legal form matters more
than legal authority, we risklosing something very
fundamental to our form ofgovernment not just procedural
(15:21):
integrity, but the public trustin justice itself.
Thank you for joining us onConversations with Great
Thinkers where timeless ideasmeet today's most pressing
questions.
If today's episode sparked yourcuriosity, challenged your
assumptions or inspired a deeperpursuit of wisdom, we invite
(15:46):
you to continue the journey withus.
Be sure to follow and subscribeso you don't miss our upcoming
conversations, each one craftedto illuminate the minds and
ideas that continue to shape ourworld.
You can find us on ApplePodcasts, spotify, amazon Music,
youtube, iheart Radio andwherever your favorite podcasts
(16:10):
are heard.
And don't forget to visit ourwebsite at great-thinkerscom for
exclusive content, recommendedreadings, guest bios and ways to
engage more deeply with theideas we explore.
If you've been enjoyingConversations with Great
(16:32):
Thinkers, I hope you'll go toApple Podcasts and both rate us
with five stars and leave areview so that others can find
out what it's all about.
Until next time, keep seekingtruth, think deeply and engage
with the world around you, onegreat conversation at a time.
Welcome to Conversations with Great
Thinkers, where we explore theideas shaping our world and we
explore the people who championthem.
I'm your host, jim Lanshey, andtoday we're diving into a
conversation that strikes at thecore of democracy and the rule
of law, and that is the urgentneed for judicial reform in
(00:35):
these United States.
And welcome to this particularseries entitled Restoring
Justice Rebuilding Trust in theAmerican Judiciary, where we're
discussing one of the mostpressing questions of our time.
Can the American people trusttheir courts to be neutral
(00:57):
guardians of the law, or haveour courts become mere
extensions of the politicalbranches they were originally
designed to check?
In today's expanded episode,judges or Politicians in Robes
the Rise of JudicialPartisanship.
We're going to dive into thelegal and cultural forces
(01:21):
transforming our courts, fromideological appointments to
procedural overreach.
This episode is going tocombine two parallel stories one
which is rooted in the legaltechnicalities of Rule 65 and
federal injunctions, and theother in the growing perception
(01:45):
of a politicized judiciary.
Together, they paint a pictureof a judicial system under a
great deal of strain.
(02:07):
In early 2025, the Trumpadministration, amid rising
national tensions, used theAlien Enemies Act to justify
deportation flights of certainforeign nationals.
But a federal judge JamesBoasberg of the United States
(02:29):
District Court in Washington DCstepped in and issued a national
temporary restraining order tohalt those flights.
At the heart of the controversylies not just the immigration
policy, but a forgotten legalsafeguard, namely injunction
bonds.
But a forgotten legal safeguard, namely injunction bonds.
(02:49):
Rule 65c of the Federal Rulesof Civil Procedure requires that
a party seeking an injunctionput up a bond to cover potential
damages.
It's a rule meant to ensureresponsibility and fairness, yet
it's been routinely bypassed inpolitically charged cases like
this one.
So why has this basic rule oflaw been ignored?
Why hasn't the Department ofJustice challenged these
(03:11):
injunctions when plaintiffshaven't posted a bond?
And what does this say aboutthe expanding reach of federal
judges, who increasingly act asde facto policymakers?
Act as de facto policymakers.
In this episode, we'll explorehow procedural tools like
injunction bonds are reallymeant to check judicial
(03:32):
overreach and how their neglectthreatens the legitimacy of the
courts.
We'll also ask bigger questions, such as when judges wade into
political waters, what happensto the delicate balance of
powers between three branches ofgovernment that our
Constitution demands?
The heart of theadministration's position in
(03:55):
these particular cases is theirbelief that Judge Boasberg's
order is invalid, and theirargument Well what is it?
Order is invalid.
And their argument Well what isit?
It centers on that small,overlooked procedural
requirement buried in thefederal rules of civil procedure
.
Their position, essentially, isthat since there's no bond, or
(04:20):
perhaps just a de minimis bond,therefore there is no valid
order.
Let's take a little deeper diveinto the Alien Enemies Act of
(04:41):
1789.
It was one of fourcontroversial Alien and Sedition
Acts signed into law during thepresidency of John Adams, a
time when the young AmericanRepublic was still finding its
footing, amid fears of war withFrance.
Quoting amid fears of war withFrance.
(05:04):
The Alien Enemies Act, inparticular, granted the
president sweeping authority todetain or remove foreign
nationals from countries withwhich the United States was at
war.
It was a wartime tool rarelyused but very powerful.
Fast forward now to the 20thcentury and the act resurfaces
again, this time under PresidentWoodrow Wilson during World War
(05:26):
I, and yet again later underPresident Franklin D Roosevelt
during World War II.
These uses includedsurveillance, internment and
deportation of enemy aliens.
In both wars, especially inWorld War II, the Act was part
of the legal framework thatjustified the internment of
(05:48):
Japanese, german and Italiannationals.
Its legacy Well, that'scomplicated, powerful and
obviously, at this point, prettycontroversial.
Now, in 2025, the act has beenpulled off the legal shelf.
(06:08):
Yet once again, the Trumpadministration cited ongoing
national security threats, thistime involving state-sponsored
cyber attacks, espionage concern.
Espionage concern and what itlabeled as growing hybrid war
waged in the digital andintelligence arenas.
The administration issuedexecutive orders targeting
(06:31):
nationals from a small number ofadversarial states, countries
suspected of harboring cyberoperatives and intelligence
agents engaged in hostileactions against the United
States.
Within days, immigrationofficials began detaining and
preparing to deport hundreds offoreign nationals.
(06:53):
Civil liberties groups wereswift to respond.
Organizations like the ACLU,human Rights First and National
Immigration Law Center filedemergency lawsuits, arguing that
the policy violated due process, was overly broad and amounted
(07:16):
to racial and national origindiscrimination.
Now that's when Judge Boasbergstepped in.
Judge Boasberg, a formerpresiding judge of the US
Foreign IntelligenceSurveillance Court, commonly
known as the FISA Court, issueda temporary restraining order
(07:36):
that blocked the deportationflights pending judicial review
that blocked the deportationflights pending judicial review.
The order cited concerns aboutthe constitutionality of the
executive actions and thepotential harm to individuals
with no proven links to hostileactivities.
That ruling was immediate andcontroversial.
(07:57):
Cable news split alongpredictable lines.
Conservative commentatorsdecried the ruling as judicial
activism, while liberal analystspraised it as a necessary check
on executive overreach.
But behind the headlines, a farquieter, more technical issue
(08:17):
emerged.
The administration claimed thatJudge Boasberg's order was void
from the start, not because ofits logic or its language, but
because the plaintiffs failed topost a bond and, as previously
noted, under Rule 65C of theFederal Rules of Civil Procedure
(08:39):
, that failure could provedecisive, because injunctions
stop people from acting.
It turns out that if theinjunction was wrongly issued,
(09:03):
the defendant, which is oftenthe government, could suffer
real financial or operationalharm.
So these bonds deter frivolousor overly aggressive litigation,
and they also give thedefendant recourse if they are
harmed by a legally flawedinjunction.
The only exception to thesebonds is when the government
(09:25):
itself is seeking an injunction.
But in this case it was thegovernment that was being
enjoined, not doing theenjoining.
So the Trump administrationargued that, since no bond was
posted, the injunction or moreproperly, the temporary
restraining order never had anylegal effect.
(09:47):
And here's where the argumentfinds surprising legal strength.
Under well-established federalcase law, rule 65C has been
interpreted as mandatory, thatis, unless the court expressly
waives or sets the bond at zero,and even then the justification
(10:10):
has to be made clear.
Failure to post any bond at allcan void the injunction.
The government's refusal tocomply wasn't a blanket
rejection of judicial authority.
It was a procedural objectionrooted in the rules of civil
litigation.
Supporters called it defensiveconstitutionalism, refusing to
(10:36):
recognize judicial orders thatexceed the bounds of procedural
legitimacy, while critics calledit executive defiance.
But, as the administration'slegal counsel explained, when a
court steps outside theprocedural boundaries
established by Congress and therules of civil procedure, it
(10:57):
forfeits its authority toenforce.
Rule 65C is not window dressing, it's the price of halting
government action.
So where does all this go fromhere?
Well, there are three possiblescenarios.
The first is that the courtbacks down and acknowledges
(11:19):
procedural error and vacates thetemporary restraining order.
The second is that, if theadministration complies, under
protests challenging the orderon appeal.
And the third is aconstitutional standoff, with
the judge issuing contempt andthe administration refusing
(11:40):
enforcement.
Each path carries enormousstakes for the rule of law, for
the legitimacy of the courts andfor how future administrations
respond to rulings that theydon't like.
That they don't like.
(12:03):
Now let's take a moment to lookat precedent.
In several federal circuits,courts have ruled that the
absence of a bond can be fatalto an injunction.
For example, the Ninth Circuitin Nintendo of America versus
Louis Globe Toys, a case decidedin 1994,.
(12:24):
That case emphasized that thebond requirement is not optional
unless the trial courtexpressly rules that that is so.
Likewise, the DC Circuit rulesthat that is so.
Likewise, the DC Circuit thevery jurisdiction in which Judge
Boasberg sits has recognizedthe seriousness of failing to
observe Rule 65C.
(12:46):
So what happens when a courtskips this requirement?
Well, according to theDepartment of Justice, the
answer is clear the court'sorder is legally defective.
The administration thereforebelieved it was not in violation
of a lawful court order, but incompliance with a superior
(13:07):
legal rule that invalidated thecourt's order.
As one administration officialput it, you wouldn't obey a
warrant without a judge'ssignature.
So why should we obey aninjunction without a bond?
This framing gave theadministration a constitutional
(13:27):
high ground, at least in theirview.
It wasn't about ignoring thecourts.
It was about defending theintegrity of law against
procedural shortcuts.
Judge Boasport, for his part,threatened contempt proceedings.
But that raised anothercritical question Can a judge
enforce an order that is, by law, procedurally invalid?
(13:49):
Legal scholars remain divided.
Some argue that proceduraldefects do not strip a federal
court of jurisdiction.
Others insist that due processfor the enjoined party in this
instance the government requiresstrict compliance with Rule 65C
.
And here's the bigger issue Ifthe courts begin to ignore the
(14:12):
procedural safeguards in thenames of urgency or public
interest, they risk underminingthe very legitimacy they seek to
preserve.
So while it may seem like legalhair-splitting, the absence of
a bond in this case touched offa profound constitutional debate
.
(14:40):
We began this episode with aparadox, a technical rule with
sweeping consequences.
But this episode is much morethan just a discussion of Rule
65C.
It's about whether thejudiciary can still command
respect not just from citizens,but from the other branches of
(15:01):
government as well.
Because when court ordersbecome suggestions, when
compliance becomes conditionaland when legal form matters more
than legal authority, we risklosing something very
fundamental to our form ofgovernment not just procedural
(15:21):
integrity, but the public trustin justice itself.
Thank you for joining us onConversations with Great
Thinkers where timeless ideasmeet today's most pressing
questions.
If today's episode sparked yourcuriosity, challenged your
assumptions or inspired a deeperpursuit of wisdom, we invite
(15:46):
you to continue the journey withus.
Be sure to follow and subscribeso you don't miss our upcoming
conversations, each one craftedto illuminate the minds and
ideas that continue to shape ourworld.
You can find us on ApplePodcasts, spotify, amazon Music,
youtube, iheart Radio andwherever your favorite podcasts
(16:10):
are heard.
And don't forget to visit ourwebsite at great-thinkerscom for
exclusive content, recommendedreadings, guest bios and ways to
engage more deeply with theideas we explore.
If you've been enjoyingConversations with Great
(16:32):
Thinkers, I hope you'll go toApple Podcasts and both rate us
with five stars and leave areview so that others can find
out what it's all about.
Until next time, keep seekingtruth, think deeply and engage
with the world around you, onegreat conversation at a time.
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