Bloomberg Law: Courts’ system for issuing preliminary relief is broken
Two federal district courts determined in a single week that the Office of Management and Budget’s federal funding freeze had to be put on hold while the claims were resolved. The courts showed no hesitation in wading into a political dispute between Congress and the president.
Yet every day, individual US citizens and small businesses are denied the same kind of preliminary relief when they present their legal challenges to government action. This disparity reflects a fundamentally broken process for obtaining such relief in cases against the government.
As litigators know, legal claims are meant to be resolved after a case is fully adjudicated. The complaint, motions to dismiss, discovery, summary judgment motions, and trial seek to fully develop the facts and legal claims, allowing the court to enter a considered judgment.
But the Federal Rules of Civil Procedure allow litigants in extraordinary circumstances to seek a preliminary injunction to maintain the status quo while the case is litigated. In extreme cases, litigants can obtain a temporary restraining order without notifying the other party by showing they will likely succeed in the case, be irreparably harmed without the injunction, and that the equities and public interest favor the injunction.
These injunctions generally are difficult to obtain, particularly when small players bring constitutional claims against the government. Courts repeatedly have denied preliminary injunctions to our individual and small business clients that have serious constitutional claims against the government. They are left to fully litigate their claims while suffering the often-irreparable consequences of the denial.
The problem is acute in challenges to administrative adjudications of common law and equitable claims. In Axon Enterprises, Inc. v. Federal Trade Commission, the US Supreme Court in 2023 recognized that respondents in in-house tribunals could challenge the constitutionality of claims without enduring the process first.
It makes sense: A person can’t be made whole once they’ve already gone through an unconstitutional adjudication process, because the process itself is the actual harm. The logical conclusion of Axon is: if an adjudication respondent can show they are likely to succeed on their claim, the adjudication should be enjoined until the challenge is fully litigated.
Yet several circuit courts have eliminated that option. They concluded that even though being subjected to an unconstitutional adjudication process can’t be remedied, it’s not the right kind of irreparable injury for a preliminary injunction.
In Delaware, New Jersey, and Pennsylvania—all within the US Court of Appeals for the Third Circuit—a litigant’s chances of obtaining a preliminary injunction got even worse last year.
In a case regarding a Second Amendment challenge to state gun restrictions, Delaware State Sportsmen’s Association, Inc. v. Delaware Department of Safety and Homeland Security, the court went so far as to say that preliminary relief is unwarranted unless the case is likely to be moot without it. That is an extraordinary standard for an extraordinary remedy.
This isn’t a standard that is consistently applied. Last year, multiple lawsuits were filed challenging the legality of the Federal Trade Commission’s attempt to ban virtually all non-compete agreements. In cases brought by major business groups and companies, preliminary injunctions were entered against the ban.
The courts found that the plaintiffs would be irreparably injured by the costs of complying with the ban before the case could be resolved. Yet, for the small tree care business that we represented, a court rejected that those compliance costs were irreparable and denied preliminary relief.
The temporary restraining orders against the Trump Administration’s funding freeze are the ultimate example of the inconsistent application of preliminary relief standards. The funding freeze implicates fundamental political questions about the relationship between the president and Congress. These questions date back to Thomas Jefferson’s decision not to acquire 15 gunboats to patrol the Mississippi River as directed by Congress after the Louisiana Purchase.
In the District of Rhode Island, the court in New York v. Trump conceded that there were, in fact, legal applications of the funding freeze. Nevertheless, the court evaluated the “worst case scenario,” giving the plaintiffs the benefit of the doubt many of our clients never get. It decided that a temporary restraining order would prevent interference in state programs and vindicate general separation of powers interests.
The federal court in the District of Columbia took an even more extraordinary step of administratively pausing the funding freeze without any analysis, before also entering a temporary restraining order and eventually a preliminary injunction. Now, the executive branch’s execution of federal spending is being managed by the courts after the briefest consideration.
These approaches to preliminary injunctions are irreconcilable and call into question the fairness with which this extraordinary remedy is awarded. There will always be disparities in relief across the courts. But the extreme variability in preliminary relief in separation of powers cases exceeds what is reasonable. The Supreme Court should fix it.
The cases are: New York v. Trump, D.R.I., No. 1:25-cv-00039, 2/10/25 and Nat’l Council of Nonprofits v. OMB, 2025 BL 61298, D.D.C., 25 – 239 (LLA), 2/25/25.
The op-ed originally appeared in Bloomberg Law on March 4th, 2025.
