Preserving Preliminary Relief – Harvard Journal on Legislation

Cassandra Burke Robinson[*]

Abstract

In June 2025, the Supreme Court’s decision in Trump v. CASA fundamentally altered the landscape of federal litigation by eliminating district courts’ authority to issue “universal injunctions” that protect anyone beyond named plaintiffs. While this ruling addressed legitimate concerns about forum shopping and single-judge control over national policy, it may have overcorrected—potentially leaving constitutional violations to continue unabated while affected parties scramble to organize class actions or coordinate individual suits. The Court’s reliance on statutory interpretation of the Judiciary Act, rather than constitutional limitations, means Congress retains authority to restore broader injunctive relief through new legislation. This Article examines the case for such legislative action and proposes institutional reforms that would preserve meaningful judicial protection against government overreach while addressing the legitimacy concerns that made universal injunctions controversial. The Article evaluates universal injunctions’ evolution from extraordinary remedies into routine instruments of political contestation, analyzes the Supreme Court’s restriction of this authority, and proposes a modernized three-judge court system—structured with targeted jurisdiction, circuit court appellate review, and technological enhancements—as a promising institutional solution that addresses judge-shopping concerns without impeding access to justice. The Article further demonstrates why increasing security bond requirements would create unacceptable financial barriers to judicial review for vulnerable plaintiffs and argues that any legislative framework should preserve existing judicial discretion over bond determinations rather than mandate specific requirements. Drawing on historical experience and contemporary needs, this Article proposes a balanced legislative approach that would restore the essential function of preliminary injunctions as a check on government overreach while enhancing their deliberative legitimacy and reducing their most partisan applications.

I. Introduction

When the Trump administration announced in January 2025 that babies born on American soil to undocumented mothers would no longer receive U.S. citizenship documents,¹ the response was swift. Within weeks, four federal district judges across the country had issued preliminary injunctions blocking the policy (three of them applying nationwide, or universally), each judge ruling that the executive order appeared to violate the Constitution’s guarantee of birthright citizenship.² But in June 2025, the Supreme Court fundamentally altered the landscape for such challenges, ruling 6-3 in Trump v. CASA that federal courts lack authority under the Judiciary Act of 1789 to issue “universal injunctions” that protect anyone beyond the named plaintiffs.³

The Court’s decision represents a seismic shift in federal litigation practice. For decades, preliminary injunctions had evolved from extraordinary equitable remedies into routine instruments of political contestation, with both Republican and Democratic administrations finding their initiatives halted by nationwide judicial orders.⁴ For example, the Biden administration’s earlier attempt to protect transgender youth through federal funding conditions met a similar fate—enjoined nationwide by judges in Texas and other conservative jurisdictions.⁵ These judicial interventions, cutting in opposite political directions but employing identical procedural mechanisms, raised troubling questions about whether a single district court judge should wield such extraordinary power over national policy.

CASA answered that question with a resounding “no.” Writing for the majority, Justice Barrett held that universal injunctions “likely exceed the equitable authority that Congress has granted to federal courts” in the Judiciary Act of 1789, relying on historical analysis showing that such broad remedies lacked precedent in 18th-century English equity practice.⁶ The Court’s formalistic approach required that modern equitable remedies be sufficiently analogous to those “traditionally accorded by courts of equity” at the founding—a standard that universal injunctions could not meet.⁷

Yet the Court’s solution creates new problems. By limiting preliminary injunctions to named plaintiffs only, CASA may have overcorrected, potentially leaving constitutional violations to continue unabated while affected parties scramble to organize class actions or coordinate individual suits.⁸ The decision’s reliance on statutory interpretation of the Judiciary Act of 1789, rather than constitutional limitations, means that Congress retains authority to restore broader injunctive relief through new legislation—but any such legislative effort must deliberately address the institutional concerns that made universal injunctions so controversial.⁹

This transformation reveals the deeper tensions that CASA leaves unresolved. Congressional gridlock continues to drive presidents toward assertive executive policies that often rest on legally uncertain ground.¹⁰ Political polarization means that virtually every major presidential initiative faces immediate judicial challenge—a point that the Court made explicit in CASA, but a problem that will not likely go away simply because the Court has limited preliminary injunctions.¹¹

The transformative power of nationwide injunctions created a genuine tension between competing institutional values.¹² On the one hand, preliminary injunctions served as a crucial check against potentially unconstitutional government overreach, protecting fundamental rights from immediate irreparable harm.¹³ On the other hand, the pre-CASA practice—where forum shopping allows plaintiffs to effectively select sympathetic judges—threatened judicial legitimacy and created unpredictable governance.¹⁴ This tension doesn’t go away with the Court’s restriction of universal injunctions. Instead, the CASA decision raises continuing questions about the proper allocation of power between judges and the political branches, and about whether our court system is equipped to serve as the primary arbiter of major policy disputes.¹⁵

This Article explores the risks and benefits of legislation to restore universal preliminary injunctions in suits against the government. Part I explains how preliminary injunctions allowed litigation to become a counterweight against executive action, used by the out-of-power political party to slow down challenged policy choices. It analyzes the Supreme Court’s restriction of universal preliminary injunctions after Trump v. CASA, and it evaluates the pros and cons of restoring district courts’ ability to grant universal preliminary relief.

Part II proposes that Congress restore universal injunctive authority through requiring three-judge district courts to rule on preliminary injunctions challenging federal government action. Such courts have been used in the past for politically charged litigation, most particularly during the Civil Rights Era of the 1950s and 1960s when civil rights litigators sought to challenge discriminatory laws and practices.¹⁶ Reviving three-judge courts offers a bipartisan solution that would restore necessary constitutional oversight while addressing the legitimacy concerns that led to CASA’s restrictions. Both major political parties have experienced the consequences of inadequate judicial protection against executive overreach, creating a shared institutional interest in developing a legislative framework that preserves constitutional safeguards without recreating the problems of judge shopping and single-judge control over national policy.

Part III analyzes security bonds in the context of restored injunctive authority. While the Trump administration and others have proposed increasing the use of security bonds for preliminary injunctions, this Part argues that although courts have not been analytically consistent in their approach to considering such bonds, courts have nevertheless correctly denied such bonds in most cases against the government. It concludes that existing judicial discretion under Federal Rule of Civil Procedure 65(c) provides an adequate framework for addressing security bonds in constitutional litigation, making statutory specification of bond requirements unnecessary if Congress adopts the three-judge court framework proposed in Part II. Should Congress nevertheless choose to address security bonds in legislation authorizing three-judge district courts, however, any such provision should preserve judicial discretion rather than mandate specific bond amounts that could create financial barriers to constitutional oversight.

II. Universal Injunctions Against Government Action

Preliminary injunctions are an equitable remedy developed to protect the status quo until the merits of a lawsuit can be determined through the fact-finding process. Thus, for example, an injunction might be used “to protect a wildlife preserve from getting bulldozed to construct a theme park,” while the parties litigate the legal status of the land, or to prevent the sale of alleged counterfeit goods while the parties litigate a trademark claim.¹⁷ In private litigation, the injunction may have some impact on outsiders, but its predominant effect is on the parties litigating the case. But in litigation challenging the constitutionality of government action, injunctions typically bind the government against all parties—not just those who were able to sue.¹⁸ Of course, when electoral change leads to a change in government policy, then different parties will be motivated to bring suit. This, in turn, leads to a type of “injunction whiplash” when plaintiffs challenge government action.¹⁹

A. Injunction Whiplash: the DACA Litigation

In 2012, President Obama created the Deferred Action for Childhood Arrivals (DACA) program, protecting from deportation eligible individuals who had entered the United States as children.²⁰ Two years later, Obama announced plans to expand DACA and to create a related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program—actions that together would have “deferred action from immigration enforcement for up to 4.4 million children and parents in the United States, thus effectively allowing them to remain in the U.S. for the time being.”²¹ The state of Texas sued the government, alleging that the program expansion violated the United States Constitution’s “Take Care” clause and that the program would cost the state additional money by increasing the pool of individuals eligible for state-subsidized driver’s licenses and for unemployment assistance.²² In February 2015, a federal district court judge entered a preliminary injunction against the action.²³ On appeal, an evenly divided Supreme Court (with one vacancy on the Court) left the preliminary injunction in place.²⁴ Later that year, President Trump was elected for the first time, thus bringing the Obama initiative to an end.²⁵

It was not enough for Trump to end the expansion of the DACA program, however—instead, the administration sought to end it altogether, closing down the program to new applicants and winding down renewals for previously granted applications.²⁶ This time, immigrants, advocacy groups, and other plaintiffs sued to enjoin the order, arguing that the Trump administration’s attempt to terminate the program violated the Administrative Procedure Act and the Fifth Amendment’s Due Process Clause.²⁷ Plaintiffs filed suit in California, New York, and the District of Columbia.²⁸ Federal district courts in California and New York “entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious.”²⁹ The federal district court for the District of Columbia, on the other hand, “deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that the rescission was inadequately explained,” but “stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful.”³⁰

The Ninth Circuit was the first to affirm the nationwide injunction, at which point the Supreme Court granted certiorari in all three cases.³¹ In June 2020, by a vote of 5-4, the Court affirmed the judgment from the federal district court for the District of Columbia.³² Once again, however, elections later that year saw party control of the executive branch flip. When President Biden took office, he immediately filed an executive order reinstating DACA.³³

Of course, the change in administration did not end the litigation—further lawsuits and further injunctions ensued throughout the Biden years and continued into the second Trump administration.³⁴ Most recently, in January 2025, the Fifth Circuit ruled the DACA program unlawful but nevertheless left the program in place for current recipients.³⁵ The ruling means that for the time being, “current beneficiaries can still renew their status, but the program is closed to new applicants, as has been the case for several years.”³⁶ The Fifth Circuit also narrowed the scope of the injunction, holding that Texas was the only state that had demonstrated financial harm from the program.³⁷ In this case, however, the narrower geographic scope of the injunction is unlikely to make a difference, as there is no reason to believe that President Trump has moved away from his earlier opposition to DACA.

The shifting legal status of DACA reveals the human consequences of political and judicial uncertainty. For approximately half a million recipients, this has meant living with uncertainty that extends far beyond simple legal status. Each judicial decision has transformed their lives into a high-stakes waiting game, where career choices, educational pursuits, and family planning hang in the balance, as recipients face an ever-changing landscape of potential deportation and temporary reprieve.³⁸ As the Fifth Circuit acknowledged, these individuals have developed significant reliance interests in the program, having built their lives around a promise of temporary security that has been repeatedly challenged.³⁹ The result is a deeply personal legal confrontation that leaves these young people—brought to the United States as children and now integral parts of American communities—uncertain about their place in the only home they have ever known.⁴⁰ What began as an executive policy has become a microcosm of broader political battles, with DACA recipients caught in the crossfire of administrative actions, judicial interventions, and shifting political winds.

B. The Supreme Court’s Restriction of Universal Injunctions

In June 2025, the Supreme Court fundamentally changed the landscape for such challenges, ruling 6-3 in Trump v. CASA that federal courts lack authority under the Judiciary Act of 1789 to issue “universal injunctions” that protect anyone beyond the named plaintiffs.⁴¹

Writing for the majority, Justice Barrett held that universal injunctions—those that prohibit government enforcement against anyone, anywhere—“likely exceed the equitable authority that Congress has granted to federal courts.”⁴² The Court granted partial stays of the nationwide injunctions, limiting their scope to provide relief only to the actual plaintiffs in each case.

Justice Barrett’s majority opinion relied heavily on historical analysis, concluding that universal injunctions lack sufficient precedent in 18th-century English equity practice to justify their use under the Judiciary Act of 1789. The Court’s approach was notably formalistic, requiring that modern equitable remedies be “sufficiently analogous” to those “traditionally accorded by courts of equity” at the founding.⁴³ Because English Chancery courts typically issued only party-specific remedies, the Court held that federal district courts today cannot generally enjoin government action beyond the immediate parties before them.⁴⁴ “The universal injunction was conspicuously nonexistent for most of our Nation’s history,” Justice Barrett wrote, noting that these injunctions did not appear until the 1960s and remained rare until the 21st century.⁴⁵

In seeking the universal injunction, the plaintiffs had pointed to equitable proceedings for a “bill of peace.”⁴⁶ However, the Court held that the closest analog to the bill of peace is the “modern class action.”⁴⁷ The Court pointed to the procedural limitations in Federal Rule of Civil Procedure 23 and explained that universal injunctions cannot properly be used to circumvent class-action procedure.⁴⁸ The majority opinion left open the possibility that broader injunctions may be permissible in certain cases when needed to afford “complete relief” to named plaintiffs, but the Court left further development of that standard to the district courts.⁴⁹

The CASA decision reflected the majority’s acceptance of several long-standing criticisms about universal injunctions. Justice Barrett’s opinion explicitly acknowledged that these broad remedies incentivized forum shopping.⁵⁰ The majority also embraced concerns about asymmetric litigation effects, observing that universal injunctions operated unfairly against the government because “a plaintiff must win just one suit to secure sweeping relief” while “to fend off such an injunction, the Government must win everywhere.”⁵¹ Additionally, the Court worried that universal injunctions forced courts into “rushed, high-stakes, [and] low-information” decision-making, as quoted from Justice Gorsuch’s earlier writings, undermining the quality of judicial decisions on important legal questions.⁵² While critics had also argued that universal injunctions prevented beneficial “percolation” of legal issues through multiple circuits, the majority treated this more as a secondary concern, focusing primarily on fairness to defendants and the integrity of the judicial process.⁵³

The separate writings reveal the Justices’ expectations for how future litigation may play out. Justice Thomas, joined by Justice Gorsuch, emphasized that “complete relief” operates as a ceiling rather than a mandate, warning lower courts against treating broad relief as automatically required.⁵⁴ His concurrence stressed that courts must carefully examine whether genuinely “indivisible” remedies are necessary, setting a high bar for cases where broad relief might still be permissible.⁵⁵

In a separate concurrence, Justice Alito, joined by Justice Thomas, warned of potential “loophole[s]” that could undermine the decision’s practical significance.⁵⁶ He specifically cautioned against reflexive grants of third-party standing to states seeking to vindicate their residents’ rights, and against hasty class certification that might circumvent the new restrictions.⁵⁷

Justice Kavanaugh’s lengthier concurrence attempted to reassure practitioners that the Court’s emergency docket would continue to provide nationwide uniformity when major federal policies are challenged. His acknowledgment that district courts could still award “preliminary classwide relief that may, for example, be statewide, regionwide, or even nationwide” through Rule 23 proceedings highlights the importance of class-action procedures in challenging future governmental policies.⁵⁸

Justice Sotomayor’s dissent, joined by Justices Kagan and Jackson, focused on the merits of the underlying case. She pointed out that birthright citizenship has been the settled law since the founding, rooted in English common law’s jus soli principle, confirmed by the Fourteenth Amendment’s Citizenship Clause, and repeatedly upheld by the Supreme Court.⁵⁹ As a result, the dissent concluded that the executive order limiting birthright citizenship was “patently unconstitutional.”⁶⁰

Justice Jackson’s separate dissent went even further, characterizing the majority’s approach as an “existential threat to the rule of law.”⁶¹ Jackson argued that the Court’s decision effectively permits “executive lawlessness” by creating zones where constitutional violations can continue unabated.⁶² Her description of the resulting system as potentially creating “a mortal wound” to constitutional governance reflects the depth of liberal justices’ concern about the decision’s implications.⁶³

The dissents’ criticism of the ruling suggested potential pathways for future litigation. Given the Court’s limitation of preliminary injunctive relief, Justice Sotomayor concluded that “the parents of children covered by the Citizenship Order would be well advised to file promptly class-action suits and to request temporary injunctive relief for the putative class pending class certification.”⁶⁴ However, it is also possible that the concerns of both the majority and dissenters could be significantly allayed by new legislation that preserves the function of preliminary relief without falling into some of the procedural traps that led so many on both sides of the aisle to criticize the growing strategic use of universal injunctions.

C. The Risks and Benefits of Restoring Injunctive Authority

The factors that originally led to the proliferation of universal injunctions remain present in the post-CASA landscape, raising important questions about whether Congress should act to restore broader injunctive authority. First, congressional gridlock continues to drive presidents toward ever more assertive executive policies that often rest on legally tenuous ground.⁶⁵ Second, increasing political polarization means both that there is less room for compromise between the parties and less perceived legitimacy for actions taken by the opposing party.⁶⁶ As a result, lawsuits challenging executive action will likely remain common regardless of CASA’s restrictions.⁶⁷ Finally, and perhaps most importantly, plaintiffs are still able to file lawsuits in districts with judges known to be ideologically favorable, even if they now must either do so on an individual basis or seek class certification.⁶⁸

The Supreme Court’s concerns about the pre-CASA system were well-founded.⁶⁹ Judge shopping drove much of the chaos surrounding preliminary injunctions, as plaintiffs from both parties identified district court judges predictably favorable to their lawsuits, increasing the odds of obtaining nationwide relief to pause challenged government action.⁷⁰ As Professor Amanda Frost has pointed out, the plaintiffs challenging President Obama’s deferred action “appeared to have strategically filed their case in the Brownsville Division of the Southern District of Texas, where they were nearly certain to have the case assigned to Judge Andrew Hanen, who was already on record as opposing Obama’s immigration policies.”⁷¹ Similarly, challenges to Trump administration policies were “filed in ‘blue states’ such as Hawaii, Washington, and Maryland, where the judges were more likely to rule in the plaintiff’s favor.”⁷²

This forum shopping—or, more precisely, judge shopping—creates significant legitimacy problems. First, such explicitly partisan judge shopping creates the perception that legal outcomes depend more on judicial selection than on legal reasoning.⁷³ This is a significant problem for judicial legitimacy, which rests on the foundation of public faith in the impartiality of American courts.⁷⁴ The American public is already deeply polarized and inclined to be skeptical of judicial neutrality.⁷⁵ Further eroding the public trust would undermine the rule of law.⁷⁶

Furthermore, there is reason to be skeptical of the judges whose districts have served as magnet forums for nationwide injunction cases. These judges tend to issue rulings that are predictably aligned with the plaintiffs’ partisan interests.⁷⁷ Professor Stephen Vladeck has referred to the process as “the cherry-picking of outlier judges.”⁷⁸ That is, the judge was chosen by the plaintiffs specifically for his or her perceived partiality—the very opposite of what scholar Ronald Cass has referred to as “rule-of-law values.”⁷⁹

Yet, the complete elimination of universal injunctive authority may create equally serious problems for constitutional governance. As the dissenting justices in CASA emphasized, injunctions are sometimes necessary to protect the rule of law itself, especially when constitutional and civil rights are threatened.⁸⁰ The birthright citizenship litigation illustrates this tension: citizenship is not just a fundamental right—it is the cornerstone from which other civil and political rights derive.⁸¹ Without injunctive access in citizenship cases, affected individuals may face immediate exclusion from fundamental civic participation, including voting rights, access to federal benefits, and protection from deportation, while lengthy litigation proceeds.⁸² Such harms cannot be remedied retroactively even if plaintiffs ultimately prevail on the merits.⁸³

The practical challenges of post-CASA litigation reveal why some form of broad injunctive authority may be necessary. Not every challenge to government authority needs to result in a preliminary injunction.⁸⁴ And not every preliminary injunction against government actions needs to apply universally throughout the country.⁸⁵ But in cases like the citizenship litigation, nationwide injunctions play an important role. First, they prevent immediate and irreparable harm to individuals who cannot quickly bring their own lawsuits.⁸⁶ Second, they protect constitutional rights at the societal level, not just the individual level—an important factor, for example, in the school desegregation litigation where issuing relief only to named plaintiffs would not have remedied the underlying harm in an otherwise segregated institution.⁸⁷ Finally, and importantly, nationwide injunctions are sometimes necessary to avoid administrative chaos and confusion. Again, the birthright citizenship orders offer a compelling case in this regard—if the injunction were narrowed geographically, babies born in some states would be recognized as citizens at birth, and babies born in other states would not be.⁸⁸ But of course, there is freedom of movement within the United States, so families might move from a state in which their child’s citizenship is recognized to a state in which it is not—or vice versa. It would be unrealistic for the government to be able to manage such a system, especially as there is no national database of individual residences.⁸⁹ And the passport difficulties would be extreme—a baby born in a location subject to the injunction would be entitled to a United States passport, but would the government revoke that passport if the family moved to a different state?

CASA thus presents Congress with a choice between two imperfect systems. The pre-CASA practice of universal injunctions encouraged extreme judicial partisanship and undermined rule-of-law values through judge shopping. But CASA’s complete elimination of universal authority threatens to leave constitutional violations unchecked, forcing vulnerable populations to endure ongoing harm while navigating complex procedural requirements. The challenge is designing institutional reforms that preserve meaningful constitutional protection without recreating the legitimacy problems that made universal injunctions so controversial.

III. Institutional Safeguards Through Multi-Judge Panels

CASA’s reliance on statutory interpretation rather than constitutional limitations opens a clear path for congressional reform. Because the Court grounded its decision in the text and historical understanding of the Judiciary Act of 1789, Congress retains full authority to authorize broader preliminary injunctive relief through new legislation. This Article proposes that Congress restore universal injunctive authority by requiring three-judge district courts for cases seeking universal preliminary injunctions against federal government action.⁹⁰ The proposal offers a balanced legislative reform that would largely preserve the constitutional protection benefits of preliminary injunctions while mitigating their costs and excesses under the current system. This presents an opportunity to address the legitimate institutional concerns that made universal injunctions controversial while preserving meaningful judicial protection against government overreach. Rather than simply restoring the problematic status quo ante, Congress could implement structural reforms that enhance both the deliberative quality and perceived legitimacy of preliminary injunction decisions.

Such a three-judge framework would harness the deliberative advantages of multi-judge panels while avoiding the administrative burdens that plagued earlier incarnations of these courts. Three-judge district courts were popularized in the mid-twentieth century, particularly for highly politicized cases. They fell out of favor later in the century due to a combination of perceived administrative burdens and a sense of diminished need for such tribunals.⁹¹

Today, three-judge district courts maintain jurisdiction primarily over constitutional challenges to legislative redistricting, with panels regularly convened to hear gerrymandering claims and disputes over congressional and state legislative maps.⁹² Three-judge courts also retain authority in cases brought under specific federal statutes, including certain provisions of the Voting Rights Act⁹³ and the Bipartisan Campaign Reform Act.⁹⁴ The continued success of three-judge courts in politically sensitive litigation suggests that the mechanism remains viable and could be expanded to address the contemporary challenges posed by nationwide injunctions against executive action.⁹⁵

A. The Three-Judge District Court

Three-judge district courts represent a specialized procedural mechanism in the federal judiciary with a rich historical legacy. These panels were created by Congress in 1910 as a direct response to the Supreme Court’s controversial decision in Ex parte Young, which allowed federal courts to enjoin state officials from enforcing allegedly unconstitutional state laws despite sovereign immunity doctrines.⁹⁶ The legislative solution required that three federal judges—typically consisting of the district judge before whom the case was originally filed plus two additional judges, one being a circuit judge—would convene to hear any case seeking to enjoin state legislation on constitutional grounds.⁹⁷ Judgments from three-judge district courts could be immediately appealed to the Supreme Court, without requiring intermediate appellate review.⁹⁸

The creation of these panels served multiple purposes. Senator Lee Slater Overman (D-N.C.), who championed the legislation, saw it as a remedy against federal overreach into state legislative power, memorably stating that it was a “sad day when one subordinate Federal judge can enjoin the officer of a sovereign State” and thereby have “tied the hands of a sovereign State.”⁹⁹ The three-judge court was designed to address the perception that it was disproportionate for a single federal judge to overturn the work of an entire state legislature. As noted by Professor Michael Solimine, perhaps the nation’s foremost expert in the history of three-judge district courts, some legislators believed that “three judges rendering a decision would be less likely to face resistance” than would a single judge.¹⁰⁰ The structure also aimed to reduce the likelihood of hasty or politically motivated decisions by requiring collaborative deliberation.

Over the decades following their creation, three-judge district courts saw their jurisdiction steadily expanded.¹⁰¹ In 1913, Congress expanded the jurisdiction of three-judge courts to include review of injunctions against orders of state administrative boards.¹⁰² In 1925, Congress extended the three-judge requirement to requests for permanent injunctive relief, not just temporary remedies.¹⁰³ Most significantly, in 1937, Congress extended the jurisdiction of three-judge courts to include constitutional challenges to federal legislation—a move that, as Solimine describes, was “a relatively minor remnant of President Roosevelt’s storied Court-packing plan.”¹⁰⁴

The three-judge court system gained particular prominence during the Civil Rights Era of the 1950s and 1960s.¹⁰⁵ Solimine explains that civil rights litigators, especially those representing the NAACP and NAACP Legal Defense Fund, “wanted the cases to be before such courts because it negated the prospect of a single, possibly unsympathetic, judge hearing the case, and because three judges were more likely to take the bolder legal steps, on both the merits and remedies, that the cases demanded.”¹⁰⁶ Landmark cases like Brown v. Board of Education¹⁰⁷Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951) (three-judge court), rev’d, 347 U.S. 483 (1954). and Roe v. Wade¹⁰⁸Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970) (per curiam) (three-judge court), rev’d in part and aff’d in part, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022). were litigated before three-judge district courts with direct appeal to the United States Supreme Court.¹⁰⁹ Overall, plaintiffs challenging the constitutionality of state law tended to have somewhat greater success before three-judge district courts, though the effect was relatively modest.¹¹⁰

As three-judge district court cases grew more common, however, they also started to face some backlash. Although some of the cases that qualified for three-judge courts dealt with major policy issues of national importance, many others did not.¹¹¹ Convening a special panel for minor cases felt unduly burdensome, and the mandatory Supreme Court appeal wasted limited resources.¹¹² Congress first curtailed the use of three-judge district courts in reviewing agency actions and antitrust cases.¹¹³ In 1976, Congress went even further and “transferred default responsibility for virtually all constitutional litigation—including challenges to the validity of federal and state statutes—back to single-judge district courts.”¹¹⁴ By this time, the change was viewed as a relatively uncontroversial procedural matter; trust in the judiciary was higher than it had been earlier in the century, and fears of judicial overreach had largely receded.¹¹⁵

B. Building Support for Three-Judge Panels as a Path to Restoration

Several commentators and judges have mentioned three-judge district courts as a potential solution to the problems posed by nationwide injunctions. The idea was first floated by Judge Gregg Costa in a response to Professor Samuel Bray’s seminal article¹¹⁶ criticizing nationwide injunctions.¹¹⁷ Legal scholar Stephen Vladeck has similarly written an op-ed in favor of the idea.¹¹⁸ These academic proposals have also found expression in concrete legislative efforts. In May 2023, Representative Deborah Ross (D-N.C.) and Senator Ronald Wyden (D-Or.) introduced the Fair Courts Act, which would prohibit district courts from granting nationwide relief unless the request is heard by a panel of three judges, while also addressing judge shopping through random case assignment requirements.¹¹⁹

However, such proposals have largely failed to gain traction, as scholars worry that any revival of such panels would face the same administrative challenges that led Congress to curtail their jurisdiction in the 1970s.¹²⁰ Professor Solimine has expressed a cautious optimism that nevertheless sounds a warning about logistical difficulties.¹²¹

These concerns are understandable when considering a wholesale return to the historical three-judge court model. However, this Article proposes a more targeted and modernized approach that harnesses the deliberative benefits of multi-judge panels while avoiding the administrative burdens that plagued the system in its earlier incarnation. By tailoring the three-judge requirement specifically to universal injunction cases and modifying the appellate review structure, this legislative framework would authorize broader relief while preventing the judge-shopping problems that concerned the Court, creating institutional safeguards that address both constitutional protection and legitimacy concerns.

1. The Case for Reviving Three-Judge Panels

The historical context that initially spurred the creation of three-judge courts bears striking similarities to our present circumstances. Congress established these panels in 1910 amid concerns about single federal judges blocking state legislation, creating institutional tensions between federal courts and state governments.¹²² Today, we face an analogous crisis of legitimacy, as political polarization has intensified skepticism about judicial neutrality—and while CASA eliminated single-judge universal injunctions, it has not resolved the underlying tensions about judicial intervention in politically sensitive executive policies.¹²³ The three-judge solution that once helped navigate tensions between federal and state authority could similarly help address contemporary tensions between judicial intervention and executive policymaking.

Three-judge panels offer practical advantages for improving both decision quality and public perception. First, collegial deliberation among multiple judges tends to moderate extreme positions and produce more carefully reasoned decisions.¹²⁴ Even when judges disagree, the necessity of articulating positions to colleagues with potentially different perspectives encourages more rigorous analysis.¹²⁵ Second, and perhaps more importantly, decisions from multi-judge panels carry enhanced legitimacy—both actual and perceived—especially in politically sensitive cases.¹²⁶ A preliminary injunction endorsed by a politically diverse panel of judges signals that the legal concerns transcend partisan interests, potentially reducing the perception that judicial intervention reflects merely political opposition to the administration’s policies.¹²⁷

The administrative burdens that once made three-judge courts unwieldy have substantially diminished in the digital age.¹²⁸ When Congress curtailed these courts in 1976, convening judges from different locations required significant logistical coordination and travel expenses. Today, technological advances—particularly remote video proceedings that became standard practice during the COVID-19 pandemic—have dramatically simplified multi-judge proceedings.¹²⁹ Judges in different courthouses can now participate in hearings, confer with colleagues, and review joint opinions with minimal disruption to their regular dockets.¹³⁰ This technological transformation makes the revival of three-judge courts considerably more practical than when they were restricted nearly five decades ago.

2. Designing an Effective Three-Judge Framework for Nationwide Injunctions

This Article proposes a modernized three-judge district court system with several key design features: (1) panels comprised of three district judges from within the circuit in which the case was filed, reducing judge shopping while maintaining reasonable geographic connection; (2) jurisdiction limited specifically to cases seeking universal preliminary injunctions against federal government action, conserving judicial resources; (3) appellate review directed to circuit courts rather than mandatory Supreme Court review, allowing for percolation of legal issues; and (4) leveraging modern technology to minimize the administrative burdens that once made these courts unwieldy.

Some scholars have suggested addressing the concerns about single-judge injunctions by enhancing appellate review rather than reviving three-judge district courts. For example, Professor Thomas Schmidt has proposed a modified appellate approach in which “any district court injunction against a federal policy whose benefit extends beyond the plaintiffs to the dispute would be automatically stayed (except as to the parties) when the government files a motion to stay in the applicable court of appeals,” and could not go into effect unless and until a circuit court panel denies the stay.¹³¹ This approach would provide additional judicial scrutiny without creating a separate procedural mechanism.

However, collegial deliberation at the district court level offers distinct advantages. Most crucially, it allows for collaborative judicial participation during the factual development of the case, rather than merely on review of a completed record. In preliminary injunction hearings, judges can actively question counsel, probe evidentiary weaknesses, and test legal theories while the factual record is still being developed.¹³² Multiple judges engaging in this process can identify different factual questions and legal concerns, leading to more thorough development of the issues central to the injunction decision. By contrast, appellate review—even on an expedited basis—necessarily operates on a record already assembled by a single judge, whose individual perspective and priorities shaped the factual development.¹³³

To avoid the administrative burdens that led Congress to restrict three-judge courts in the 1970s, a revived system should incorporate several key modifications. First, the requirement for multi-judge panels should be triggered only for preliminary injunctions seeking nationwide relief against federal government action, not for injunctions limited to named plaintiffs or narrower geographic areas. This targeting would focus judicial resources on precisely those cases where the greatest legitimacy concerns arise.¹³⁴ Additionally, a single judge should retain authority to deny an injunction without convening a panel, or to grant a time-limited temporary restraining order (typically not exceeding two weeks) to preserve the status quo while a three-judge panel is assembled.¹³⁵ This approach would conserve judicial resources while still ensuring multi-judge consideration before any significant nationwide policy suspension takes effect.

Perhaps most importantly, a modernized three-judge court system should decouple these panels from mandatory Supreme Court review. Unlike the historical model where three-judge court decisions were appealed directly to the Supreme Court as of right, a revised system should direct appeals to the appropriate circuit court of appeals with discretionary Supreme Court review available through the normal certiorari process.¹³⁶ This modification would address what was perhaps the most significant administrative concern that led to the restriction of three-judge courts—the substantial burden that direct appeals placed on the Supreme Court’s docket.¹³⁷ With the volume of nationwide injunction cases challenging executive action, expecting the Supreme Court to hear every such case would be unrealistic and inefficient. Circuit court review would allow for issues to percolate through the judicial system, with the Supreme Court retaining authority to grant certiorari in cases raising particularly significant legal questions and resolve circuit splits. Importantly, allowing percolation through the intermediate courts would minimize the risk of further politicizing the Supreme Court docket.¹³⁸

The panel composition should also be structured to mitigate judge shopping while maintaining reasonable geographic connection to the litigation. Rather than randomly assigning judges from across the country, the panel should be comprised of three district judges from within the same circuit where the case is filed.¹³⁹ This approach preserves some plaintiff discretion in forum selection—they could still file in circuits perceived as more favorable to their arguments—but significantly dilutes the advantage of selecting a specific, predictably sympathetic judge. For example, plaintiffs challenging Republican administration policies might still file predominantly in the Ninth Circuit, while those challenging Democratic administration policies might prefer the Fifth Circuit, but they could no longer count on assignment to a specific judge with known views on the precise issue at hand.

Critics might argue that three-judge panels could potentially increase the likelihood of nationwide injunctions in high-profile cases, as multiple judges might be more willing than a single judge to take controversial steps.¹⁴⁰ Additionally, such panels might feel less constrained by normal geographic jurisdictional limits when issuing nationwide relief. These concerns, however, are mitigated by the circuit court appeal process proposed here. The appellate court would retain authority not only to affirm or reverse the injunction but also to modify its scope, potentially limiting relief where appropriate.¹⁴¹ This additional layer of review provides an important check against overly broad injunctions, allowing tailoring of relief to the specific circumstances of each case.

The proposed three-judge framework would restore necessary constitutional protection while addressing the problems that led to CASA—offering a legislative solution that preserves judicial protection of constitutional and civil rights while eliminating the most problematic aspects of judge shopping. It maintains the possibility of Supreme Court oversight in cases implicating fundamental constitutional questions, while not burdening the Court with mandatory review of every nationwide injunction case. By enhancing the legitimacy and deliberative quality of preliminary injunction decisions, this approach addresses both procedural and substantive concerns about the current system, offering a promising path forward in an era of increasing judicial polarization. Most importantly, Congress could restore universal injunctive authority without recreating the legitimacy crisis that plagued the pre-CASA system, achieving the constitutional oversight function that universal injunctions served while eliminating the institutional problems that made them controversial.

IV. Injunction Security Bonds

The Supreme Court’s decision in CASA represents one approach to limiting the perceived excesses of universal preliminary injunctions, but it was not the only strategy under consideration. Before CASA eliminated single-judge universal injunctions, the Trump administration had attempted to use security bond requirements as an alternative method to constrain nationwide preliminary relief.¹⁴² Now that the Court has directly restricted universal injunctive authority, bond requirements are no longer needed as a limiting mechanism—yet they remain relevant for the narrower forms of injunctive relief that survive CASA and for any legislative framework that might restore broader preliminary relief through three-judge courts. High-cost security bonds effectively convert access to preliminary injunctive relief—often the only meaningful protection against potentially unlawful government actions—into a privilege available primarily to well-resourced litigants.¹⁴³ When government policies potentially violate constitutional guarantees or exceed statutory authority, the affected individuals’ ability to seek timely judicial protection should not depend on their capacity to post significant financial security.

This Part argues that security bonds, while serving legitimate purposes in commercial litigation, pose significant problems when applied to constitutional challenges against the government. Courts should generally waive or minimize bond requirements in such cases because substantial bonds create financial barriers that effectively deny access to judicial review for vulnerable plaintiffs seeking to vindicate fundamental rights. Any legislative framework restoring universal injunctive authority should preserve existing judicial discretion under Federal Rule of Civil Procedure 65(c) rather than mandate specific bond amounts that could compound the access-to-justice problems that CASA has already created.

If Congress adopts legislation requiring three-judge district courts for universal preliminary injunctions, there will likely be some support to include the issue of security bonds in such a statute. President Trump, confronting more than one hundred lawsuits filed against his administration during the first two months of his second term,¹⁴⁴ issued a memorandum directing administration lawyers to seek security bonds in all cases involving preliminary injunctions.¹⁴⁵ He was not alone in that view. Professor Bray, who has written extensively about preliminary injunction procedures, suggests that expanding the use of security bonds could help constrain some of the procedural device’s potential abuses.¹⁴⁶ While CASA has eliminated single-judge universal injunctions, security bond issues remain relevant in two key contexts: first, for the individual litigation and class actions that now represent the primary avenues for challenging government policies; and second, for any legislative framework that would restore broader preliminary relief—particularly since three-judge courts could still issue injunctions with nationwide effect under appropriate statutory authorization.

The federal rules of civil procedure set an expectation for security bonds. Federal Rule of Civil Procedure 65(c) establishes that courts “may issue a preliminary injunction or a temporary restraining order only if the movant 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.”¹⁴⁷ This rule combines a mandatory directive (courts may issue a preliminary injunction “only if” the movant gives security) with a discretionary safeguard (“an amount that the court considers proper”).¹⁴⁸ Although the circuits have taken somewhat different approaches to injunction security bonds,¹⁴⁹ courts generally have interpreted this provision to allow substantial flexibility—including the discretion to require nominal bonds or waive the requirement entirely in appropriate cases.¹⁵⁰ The bond requirement makes considerable sense in commercial disputes, where a defendant’s economic interests could suffer measurable financial harm from an erroneously issued injunction, and where the rule’s protection ensures that defendants can recover documented financial losses.¹⁵¹

The policy rationale for injunction security is different when it comes to suits against the government. Government funds, after all, are ultimately the public’s money. When policy implementation is wrongfully delayed, taxpayers bear that cost. On the other hand, when government action unlawfully violates constitutional rights, the public suffers a far more fundamental harm—the erosion of liberty itself. Unlike financial losses, which can be calculated and potentially recovered, infringements on constitutional freedoms cause irreparable damage that money cannot restore. Requiring substantial security bonds from plaintiffs seeking injunctive relief against government action introduces asymmetric barriers to judicial review that undermine foundational constitutional structures.¹⁵² The government, with its virtually unlimited resources, faces no comparable financial barrier when it seeks to enforce its policies against individuals.

A. Recent Judicial Approaches to Security Bonds

Courts have generally recognized the problematic nature of requiring substantial security bonds from plaintiffs challenging government action. In practice, judges are meant to exercise their discretion to require only nominal bonds or waive the requirement entirely in constitutional cases against the government.¹⁵³ This pattern reflects an intuitive understanding of the power imbalance between individual plaintiffs and the state.

However, this judicial practice often lacks thorough analytical foundation, often merely replicating the injunction factors themselves. For example, in PFLAG, Inc. v. Trump, the plaintiffs sought an injunction against executive orders that conditioned federal funding for medical facilities on denying gender-affirming care to individuals under the age of nineteen.¹⁵⁴ The district court granted an injunction forbidding the government from withholding or terminating existing federal funding.

It found that the plaintiffs had demonstrated a strong likelihood of success on the merits, explaining that “[t]he challenged provisions of the Executive Orders place significant conditions on federal funding that Congress did not prescribe.”¹⁵⁵ The court further found that the plaintiffs would face irreparable harm without the injunction, as plaintiffs faced an interruption in medical treatment.¹⁵⁶ The court likewise held that the balance of equities and public interest supported the injunction, noting that while “the Executive is no doubt free to pursue [its desired policies] at the federal level,” such changes must go through Congress.¹⁵⁷

When it came to consideration of the security bond, the government asked for a bond “because ‘any preliminary relief would potentially mandate that the Executive spend money that may not be recouped once distributed.’”¹⁵⁸ The court, however, noted that because the plaintiffs had such a high likelihood of success on the merits, it was unlikely that the government would suffer any harm at all.¹⁵⁹ The court therefore declined to order a bond.

The court’s bond analysis did not explicitly consider whether the bond analysis should differ when the government is a party. If there is a single standard for both private and public litigation, then the court’s analysis would suggest that security bonds should be vanishingly rare in injunction cases. After all, the “likelihood of success on the merits” prong of the injunction analysis is already the most influential factor in the decision of whether or not to grant an injunction.¹⁶⁰ Without such a finding, plaintiffs are unlikely to obtain an injunction at all. But with a finding that the plaintiffs have a high likelihood of success on the merits, the defendants will almost never be able to demand a security bond—after all, if it is more likely than not that they would lose on the merits, then it would necessarily be more likely than not that there would be no damages from being “wrongfully enjoined or restrained.”¹⁶¹

Several other recent cases denied security bonds with minimal discussion. In one case, refugees and former refugees challenged the government’s decision to indefinitely suspend activities under the United States Refugee Assistance Program. The district court granted a preliminary injunction, finding that “Plaintiffs are likely to prove that the Agency Suspension and the Refugee Funding Suspension are arbitrary and capricious and must therefore be set aside under the APA.”¹⁶² The court summarily denied the government’s request for a security bond without discussion.¹⁶³ Likewise, in two of the birthright citizenship cases, the courts denied the government’s request for a security bond without significant discussion. The first stated merely that the “security requirement is hereby waived because the defendants will not suffer any costs from the preliminary injunction and imposing a security requirement would pose a hardship on the plaintiffs.”¹⁶⁴ The second noted briefly that “[n]o security under Federal Rule of Civil Procedure 65(c) is necessary or warranted in the circumstances of this case,” as “the plaintiffs are an individual and two local non-profit organizations, they seek to vindicate an important constitutional and federal statutory right, and the injunction will not expose the defendants to financial loss.”¹⁶⁵

The district court engaged in a somewhat more searching analysis of the security bond requirement in a case where plaintiffs sued to challenge the executive orders aimed at ending “Diversity, Equity, and Inclusion” programs in higher education. It noted that although the government had asked for a security bond, it could “point to no example of a court ordering a bond in analogous circumstances.”¹⁶⁶ It also noted that courts had “frequently waived the bond requirement in cases where a fundamental constitutional right [was] at stake.”¹⁶⁷ Finally, the court explained that setting a substantial bond would likely “forestall Plaintiffs’ access to judicial review.”¹⁶⁸ As a result, the court ultimately “set a nominal bond of zero dollars.”¹⁶⁹

B. The Risk That Security Bonds Will Impair Constitutional Oversight

Engaging in a deeper analysis about why security bonds may be denied or reduced in fundamental-rights cases is important. As noted above, courts frequently reduce or waive bond requirements without fully articulating why traditional security concerns should apply differently when the government is the defendant.¹⁷⁰ This analytical gap leaves the doctrine surrounding security bonds in government litigation underdeveloped and vulnerable to inconsistent application. There are valid reasons why judges might exercise their discretion to deny security bonds when issuing preliminary injunctions in litigation against the government.¹⁷¹ Articulating a more principled framework would better secure access to justice while providing clearer guidance to both litigants and courts.

One part of that framework should consider the existing power imbalance between the parties in constitutional litigation. This imbalance is particularly stark when considering that constitutional litigation often involves individual citizens of modest means confronting the full power and resources of the state.¹⁷² The asymmetry also appears in the impact of erroneous decisions: if the government wrongfully enforces an unlawful policy, affected individuals often have no practical remedy for the resulting harm, while the government can recover against a bond if an injunction is later deemed improper.

Such requirements thus contradict the basic constitutional design that assigns to courts the responsibility to enforce legal constraints on governmental power regardless of the financial status of those whose rights are threatened. When government policies potentially violate constitutional guarantees or exceed statutory authority, the affected individuals’ ability to seek timely judicial protection should not depend on their capacity to post significant financial security.¹⁷³ The practical impact of this principle becomes clear when examining recent high-profile constitutional challenges.

Consider the DACA cases discussed above as well as the recent birthright-citizenship cases.¹⁷⁴ The plaintiffs in these cases included pregnant asylum seekers, and young adults from immigrant families.¹⁷⁵ Had significant bond requirements been imposed, even the few individual plaintiffs who managed to bring cases might have been unable to obtain preliminary relief, leaving thousands to suffer potentially irreparable harm while awaiting final adjudication. This dynamic effectively creates a two-tiered system of constitutional protection, where access to judicial review depends on financial capacity rather than the strength of one’s legal claims.

The security bond requirement presents particularly acute problems in cases involving core constitutional rights or affecting vulnerable populations.¹⁷⁶ Executive actions addressing immigration, voting rights, religious freedoms, or similar matters frequently impact thousands of individuals who lack substantial financial resources. Demanding bonds sized to reflect the government’s claimed costs of delayed implementation would place preliminary injunctive relief beyond reach for most affected parties, regardless of the merit of their legal claims.¹⁷⁷ This practical immunity from preliminary injunctive processes for many government actions contradicts the carefully calibrated system of checks and balances established in our constitutional framework.¹⁷⁸ While the executive branch legitimately enjoys significant authority to implement policy, that authority remains bounded by constitutional and statutory constraints that courts must enforce.¹⁷⁹ Security bond requirements that shield many government actions from judicial review during their implementation phase undermine this constitutional balance and weaken the judiciary’s vital role in ensuring government actions stay within legal boundaries.

C. Balancing Judicial Discretion

Given these constitutional interests underlying litigation against the government, how should courts interpret Federal Rule of Civil Procedure 65 to avoid requiring plaintiffs to pay simply to protect their constitutional rights? While the text of Rule 65 grants discretion to judges, that discretion operates within boundaries—the rule requires 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.”¹⁸⁰ This language raises critical interpretive questions: What factors should courts consider when determining a “proper” amount in cases challenging government action? Can courts legitimately set bonds at nominal amounts—or waive them entirely—when plaintiffs seek to vindicate fundamental constitutional rights? And can courts consider less than the full amount of claimed administrative costs when determining what is “proper” in the constitutional context?

Several interpretive principles can guide courts in answering these questions while respecting both the text of Rule 65 and the unique context of constitutional litigation against the government. First, in considering financial costs, courts should assess whether the government’s stated costs for policy delay would be offset by implementation savings.¹⁸¹ When the government is attempting to establish a new policy—whether restricting birthright citizenship or prohibiting gender-affirming care—the costs of delaying implementation through an injunction may be balanced by avoiding immediate expenditures on new administrative systems. Developing procedures, training personnel, and establishing compliance mechanisms all carry expenses that might be averted while litigation proceeds. If these implementation costs potentially outweigh the costs of waiting until the merits can be litigated, courts would be justified in finding that the government faces no substantial financial loss even if the injunction is later deemed erroneous.

Second, the bond analysis should recognize the asymmetry of party interests inherent in government litigation. In non-governmental disputes, both parties typically act in their private interest.¹⁸² When the government takes lawful action, it is by definition acting in the public interest.¹⁸³ But when the government’s action is unlawful, it is the challengers who are acting in the public interest, especially when protecting constitutional and civil rights.¹⁸⁴ Thus, in action against the government, the risk of unwarranted injunctive relief is a risk borne by the public—when lawful government action is restrained, it is the public interest that is harmed.¹⁸⁵ This remains true even in purely financial terms, as any cost to the government is ultimately paid by taxpayers.

As a result, it would be improper for the court to weigh only the financial cost to the government in setting injunction bonds. A more principled approach would weigh the public interest in avoiding unlawful government action against the risk of harm from wrongly restraining government action.¹⁸⁶ In most cases challenging government policies where the injunction factors are otherwise satisfied, a nominal injunction bond should typically offer sufficient security.¹⁸⁷

Finally, to the extent that costs remain, the government holds a significant advantage in its ability to distribute implementation costs across the entire tax base. Individual plaintiffs, in contrast, would be required to bear the entire financial burden of the bond themselves.¹⁸⁸ This disparity is most pronounced in cases involving vulnerable populations or fundamental rights, where plaintiffs’ limited resources contrast sharply with the government’s vast financial capacity. Thus, even when plaintiffs suing the government are required to pay a security bond, the individual plaintiffs should not be required to cover the entire cost to the federal government—instead, they should be asked to pay their proportional share. Bonds of a few thousand dollars or less can play a role in deterring meritless injunction applications without being so high as to deny plaintiffs’ right to seek judicial review.¹⁸⁹

These interpretive principles suggest that existing judicial discretion under Rule 65(c) should provide an adequate framework for addressing security bonds in constitutional litigation against the government. Courts already possess the analytical tools necessary to balance access to justice concerns against legitimate government interests, and the cases discussed above show that judges generally reach appropriate outcomes even when their reasoning could be more fully developed. Rather than mandating specific bond amounts or procedures through statute, Congress should preserve this flexibility while trusting that enhanced deliberation in three-judge courts will lead to more thoughtful and consistent bond determinations.

Should Congress nevertheless choose to address security bonds in legislation authorizing three-judge district courts for nationwide preliminary injunctions, any such provision should codify the principles outlined above rather than impose rigid requirements. Appropriate statutory language might specify that courts should consider: (1) whether claimed government costs would be offset by implementation savings; (2) the public interest in preventing unlawful government action; (3) the financial capacity of plaintiffs relative to the government; and (4) the fundamental nature of the rights at stake. Such guidance would provide a clearer analytical framework for courts while preserving the case-by-case flexibility that constitutional litigation demands. Most importantly, any statutory provision should explicitly authorize courts to waive bond requirements entirely when substantial bonds would impair access to judicial review of potentially unlawful government action—ensuring that constitutional protection remains available regardless of plaintiffs’ financial resources.

V. Conclusion

The Supreme Court’s decision in Trump v. CASA represents a watershed moment in the evolution of federal litigation, ending the era of routine universal preliminary injunctions while creating new challenges for constitutional enforcement. While the Court’s elimination of single-judge nationwide injunctions addressed legitimate concerns about forum shopping and judicial partisanship, it may have overcorrected—potentially leaving government overreach unchecked while affected parties navigate the complexities of class certification and coordinated litigation. The deeper structural tensions that gave rise to universal injunctions—congressional gridlock driving executive unilateralism, political polarization eroding institutional trust, and the courts’ role as primary arbiter of policy disputes—remain unresolved after CASA.

Congress now faces a critical choice. The Court’s reliance on statutory interpretation rather than constitutional limitations provides a clear pathway for legislative action to restore broader injunctive authority. However, any such restoration should learn from the problems that made universal injunctions so controversial, implementing structural reforms that enhance both the deliberative quality and perceived legitimacy of preliminary relief decisions.

The revival of three-judge district courts for nationwide preliminary injunctions offers precisely such a balanced approach—one that acknowledges both the legitimate need for judicial protection against potentially unconstitutional government actions and the importance of ensuring these extraordinary remedies receive appropriate multi-judge consideration. By modernizing the three-judge court mechanism—limiting its application to nationwide preliminary injunctions, preserving circuit court review, and leveraging technological advances—Congress can restore meaningful constitutional oversight without recreating the legitimacy problems that plagued the pre-CASA system. This structural reform would protect constitutional rights while reducing the most problematic aspects of judicial polarization and judge shopping.

Should Congress choose to address security bonds in such legislation, existing judicial discretion under Federal Rule of Civil Procedure 65(c) provides an adequate framework for balancing access to justice against legitimate government interests. Mandating specific bond requirements would risk creating financial barriers that prevent vulnerable plaintiffs from seeking judicial protection for fundamental rights, undermining the very constitutional oversight function that preliminary injunctions are meant to serve.

In an era where both Republican and Democratic administrations have experienced the disruptive consequences of litigation challenging executive action, a modernized three-judge court system presents a rare opportunity for bipartisan institutional reform. By enhancing the deliberative legitimacy of preliminary relief while preserving robust constitutional protection, this approach offers a path forward that strengthens the rule of law and respects the proper balance between judicial review and executive authority in our constitutional system.

[*] John Deaver Drinko-BakerHostetler Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve University School of Law. Thanks to Samuel Bray and Jonathan Entin for reading an earlier version of this piece and to the editorial staff of the Harvard Journal on Legislation for their thoughtful comments and editorial assistance.

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