Patreon-Only Deep Dive Into Presidential Injunctions
Added 2017-06-17 23:28:35 +0000 UTCWe had to cut some of my research from OA 78, so this is a (hopefully) fun patron-only post where I share with you some of my research and more in-depth notes on whether the courts can issue injunctive relief against a sitting President. Here, I examine the cases and fact patterns sharply curtailing the ability of any litigant to pursue injunctive relief against the President (which suggests the MD/DC emoluments lawsuit faces long odds) -- but I also note that there is no absolute rule that says you can’t get an injunction at all. I hope you enjoy this deeper dive.
We start, of course, in the mid-19th century with the seminal case is Mississippi v. Johnson, 71 US 475 (1867). As I mentioned on the show, in that case, the State of Mississippi sought to enjoin President Andrew Johnson from “executing, or in any manner carrying out” the Reconstruction Acts on the asserted grounds that those Acts were unconstitutional.
The Supreme Court ruled that Mississippi couldn’t pursue the kind of relief it was seeking because to do so would plainly violate the separation of powers. Here’s what the Court said:
The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.
The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?
These questions answer themselves.
It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.
Id. at 500-01.
Now, obviously, that language is pretty expansive, and it can reasonably be read as suggesting that no court has the power to issue any kind of injunctive relief against a sitting President for anything; otherwise, we’d have “that strange spectacle” of the judiciary interfering in either the executive branch’s performance of its duties or the legislative branch’s right to impeach a President. Right?
You know who else read Mississippi v. Johnson that way? That’s right, our favorite point of comparison, Richard Nixon. When he was sued by a labor union for a writ of mandamus requiring him to comply with the technical aspects of a particular statute (that’s not worth getting into here), lawyers for Nixon argued that Mississippi v. Johnson meant the court couldn’t force him to do, well, anything.
But the D.C. Circuit – this case didn’t even make it to the Supreme Court, it was so uncontroversial – rejected that broad, sweeping argument. Relying on some precedent that I’m going to skip here, the Court of Appeals for the D.C. Circuit in National Treasury Employees’ Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), held that “…no immunity established under any case known to this Court bars every suit against the President for injunctive, declaratory or mandamus relief.” Id. at 608-09 (emphasis added). In other words: there’s no rule that says the courts can’t make the President do anything.
In NTEU, the court permitted mandamus relief against the sitting President. A writ of mandamus is a judicial decree forcing a public official to comply with a plain law. The most famous mandamus case is, of course, Marbury v. Madison, 5 U.S. 137 (1803), in which the Supreme Court declined to issue writs of mandamus appointing various public officials but established the principle of judicial review.
The upshot of cases like NTEU – which you should go read, seriously – is that by and large the courts are skeptical of requests for injunctive relief that will force a President to do something “discretionary,” but willing to entertain requests to force him to do things that are “ministerial” – i.e., for which he has no choice. Here’s how another Nixon-era case from the D.C. Circuit put it:
Finally, the President reminds us that the landmark decisions recognizing judicial power to mandamus Executive compliance with "ministerial" duties also acknowledged that the Executive Branch enjoys an unreviewable discretion in many areas of "political" or "executive" administration. While true, this is irrelevant to the issue of presidential immunity from judicial process. The discretionary-ministerial distinction concerns the nature of the act or omission under review, not the official title of the defendant. No case holds that an act is discretionary merely because the President is the actor.
Nixon v. Sirica, 487 F.2d 700, 712 &n.53 (D.C. Cir. 1973).
Thus, a court will conduct an inquiry as to whether a lawsuit seeks to require the President to conduct a “discretionary” action or a merely “ministerial” one, and will likely deny the first sort of relief while granting the second. For this reason, the 4th Circuit case we discuss lifted injunction against Trump personally with respect to the so-called “Muslim Ban,” EO 13780, reasoning as follows:
Finally, the Government argues that the district court erred by issuing the injunction against the President himself. Appellants' Br. 55 (citing Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 18 L. Ed. 437 (1866) (finding that a court could not enjoin the President from carrying out an act of Congress)). We recognize that “in general, 'this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties,'" Franklin v. Massachusetts, 505 U.S. 788, 802-03, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992) (opinion of O'Connor, J.) (quoting Johnson, 71 U.S. at 501), and that a "grant of injunctive relief against the President himself is extraordinary, and should . . . raise[] judicial eyebrows," id. at 802. In light of the Supreme Court's clear warning that such relief should be ordered only in the rarest of circumstances we find that the district court erred in issuing an injunction against the President himself. We therefore lift the injunction as to the President only. The court's preliminary injunction shall otherwise remain fully intact.
All of this leads me to the conclusion that the MD/DC emoluments lawsuit faces long odds in terms of whether any court will issue an injunction requiring the President to stop engaging in business deals that violate the Emoluments clauses; that looks pretty “discretionary” to me. But who knows; perhaps the Courts will see it differently. I leave you with footnote 53 from Sirica, in which the court rejected the Nixon administration’s argument that everything the President does is “discretionary” and that therefore the President may not have an injunction issued against him at all. The court dispensed with that argument as follows:
In this regard, the President's reliance on Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 18 L.Ed. 437 (1866), is misplaced. In that case, the State of Mississippi sought to enjoin President Johnson from enforcing the Reconstruction Acts. Though Attorney General Stanbery argued that the President was immune from judicial process, the Court declined to found its decision on this ground, choosing instead to deny the bill of injunction as an attempt to coerce a discretionary, as opposed to ministerial, act of the Executive. The Attorney General rehearsed many of the arguments made by the President in this case, claiming that the President's dignity as Chief of State placed him above the reach of routine judicial process and that the President was subject only to that law which might be fashioned in a court of impeachment. Id. at 484. We deem it significant that the Supreme Court declined to ratify these views. Compare Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 18 L.Ed. 721 (1867), where the Court declined jurisdiction of a similar bill of injunction even though sub-presidential Executive Branch officials were named as defendants.
Sirica, 487 F.2d at 712 n.53.
We’ll keep watching. And I’m trying to get Brian Frosh on the show.
