Potential Limits on Judicial Relief: Justice Bolick in The UnPopulist
In a recent piece for The UnPopulist, Arizona Supreme Court Justice Clint Bolick raises concern about a little-noticed provision in the federal budget reconciliation bill that would severely limit Americans’ ability to seek judicial relief.
Section 70302 would impose significant bond requirements on plaintiffs seeking preliminary injunctions against the government — even in constitutional cases — potentially making it financially impossible for individuals and public interest groups to challenge government action.
“Requiring potentially massive bonds to enjoin government action could prevent many or even most such lawsuits from being filed in the first place, because few would have the means to pay upfront. That is especially true in cases involving sweeping policies where the government could claim “costs” in the billions.”
Justice Bolick warns that this proposal is representative of a broader effort to weaken the federal courts and emphasizes the judiciary’s critical role in maintaining checks and balances.
“This provision is one small part of a greater effort to neuter and neutralize the federal courts, an effort that includes bills of impeachment over objectionable court rulings and threats of defiance of judicial orders and of suspending the writ of habeas corpus. The point of such efforts, according to Mike Davis, architect of a project called Article III, is to hold the ‘Sword of Damocles over the judiciary’s head,’ which requires that ‘you need to go after this on multiple fronts.’
In The Federalist No. 78, Alexander Hamilton prophesied that the judiciary would always be the weakest of the three branches of government for it possesses ‘neither FORCE nor WILL, but merely judgment.’ Yet its authority ‘to declare all acts contrary to the manifest tenor of the Constitution’ was vital to the protection of individual rights. This prevention would limit one of its few tools to enforce such authority.”