Do Federal Courts Lack the Power To Directly Enjoin the President?

That’s the argument the Justice Department is making in Knight First Amendment Institute v. Trump — the lawsuit in New York challenging President Trump’s blocking of users on Twitter on First Amendment grounds, in which the plaintiffs are seeking injunctive relief. Quoting (if mis-dating) the Supreme Court’s 1867 decision in Mississippi v. Johnson, the government is arguing that “courts lack jurisdiction ‘to enjoin the President in the performance of his official duties.'” This is not the first time that the Trump administration has invoked Mississippi; it’s also come up in the CREW v. Trump Emoluments Clause litigation. But for a host of reasons, the Knight case may raise the question more directly — and may eventually provide the Supreme Court with the first opportunity in 150 years to revisit one of the least-well-understood of its major separation-of-powers decisions. To that end, the post that follows aims to introduce readers to Mississippi itself, how it has subsequently been treated by the federal courts, and why it almost certainly is not (and should not be) the case today that “courts lack jurisdiction ‘to enjoin the President in the performance of his official duties.'” 

I.  The Military Reconstruction Acts and the Supreme Court

Mississippi was the first in a series of major Supreme Court cases involving efforts by different plaintiffs to challenge the constitutionality of the Military Reconstruction Acts, a series of statutes enacted by Congress in early 1867 (over President Johnson’s vetoes) that, among other things, imposed military rule at the expense of elected state governments throughout most of the South and barred re-admission of (most of the) former Confederate states until and unless they allowed blacks to vote and ratified the Fourteenth Amendment. Given the Court’s April 1866 ruling in Ex parte Milligan, there was at least some thought that, on the merits, the Justices might be skeptical of the constitutionality of subverting civilian to military rule throughout the South. But the Court never reached those merits, holding (for different reasons in different cases, including Georgia v. Stanton, Ex parte McCardle, and Ex parte Yerger) that it could not or should not do so.

Mississippi itself was an original action brought by the State of Mississippi directly against President Johnson and General Edward Ord (the general in charge of Mississippi and Arkansas under the Reconstruction Acts) in the Supreme Court. 10 days after it was filed (on April 5, 1867), and three days after it was argued (on April 12), the Court unanimously denied Mississippi’s motion for leave to file the complaint. As Chief Justice Chase framed the matter, unlike what might be true for purely “ministerial” duties (which Executive Branch officers had no choice but to exercise), courts lacked the power to dictate to the President how to exercise his discretion, even in the context of enforcing an allegedly unconstitutional statute. Otherwise, if an injunction issued, and

Thus, “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.” Although Georgia v. Stanton, Ex parte McCardle, and Ex parte Yerger involved different plaintiffs seeking relief against different defendants, the Court also ducked the matter there — somehow managing to avoid passing on the merits of the signal constitutional controversy of the day.

II.  Mississippi Criticized — And Narrowed

As David Currie wrote in Volume I of his landmark treatise, The Constitution in the Supreme Court, most of Chief Justice Chase’s analysis in Mississippi “wholly fails to persuade.” Among other things, “the President may have broad discretion in executing a valid law, but he has no discretion to enforce an invalid one since he has no discretion to violate the Constitution.” Nor did it make sense, Currie argued, to equate enjoining a President from enforcing an unconstitutional law with enjoining Congress from enacting one, since the Constitution expressly immunizes Congress from being questions about its legislative actions and makes no comparable provision for the President. Of course, as Marty suggested in a post at the Take Care blog, Mississippi makes perfect contextual sense as part of a broader pattern of rulings tailored to avoid a potentially cataclysmic constitutional showdown over Reconstruction. But that doesn’t mean its constraint on the power of federal courts vis-a-vis the President should be read for all it’s worth.

And in fact, it hasn’t been. Most famously, in United States v. Nixon (1974), the Supreme Court unanimously upheld the federal courts’ power to issue a subpoena duces tecum to the President, even though President Nixon had expressly argued that Mississippi barred the federal courts from issuing such coercive relief against the sitting Chief Executive. But as Professor Laura Krugman Ray explained in a 1991 article, there are, in fact, a number of cases after Mississippi in which courts have, in practice, entertained suits for coercive relief directly against the President. (In most instances, there’s no need to force the issue, because an injunction against the relevant Executive Branch subordinate — a Cabinet officer, for instance, as in the Steel Seizure Case — will do the work.) Put another way, there are lots of post-Mississippi examples suggesting that, insofar as Mississippi stands for a rule categorically foreclosing the power of federal courts to enjoin the President, that rule has been honored more in the breach than in its observance. (For more on this history, see also Jonathan Siegel’s magisterial 1997 Columbia Law Review article on “Nonstatutory Review.”)

But perhaps most importantly, subsequent Supreme Court jurisprudence has placed the concerns on which Chief Justice Chase relied in Mississippi on different doctrinal terrain. Thus, Nixon itself recognized (and grounded in the Constitution) an executive privilege from compulsory process barring the courts from issuing coercive orders to the President in at least some cases, and eight years later, the Supreme Court in Nixon v. Fitzgerald recognized that the President is entitled to “absolute immunity” from any and all civil liability arising out of conduct within the “outer perimeter” of his official duties while in office. (For much more on Fitzgerald, and its contemporary implications, see my May 9 Lawfare post with Ben Wittes.) In other words, there is now a doctrine (absolute immunity) that does the exact work vis-a-vis protecting the President from inappropriate judicial interference that Chief Justice Chase was analogizing to in Mississippi — one that is directed at a different kind of lawsuit than those seeking an injunction directly against the Chief Executive (which, unlike the suits that implicate Fitzgerald, are directed at the President in his official, not personal, capacity).

To that end, here’s, for example, how the plaintiffs in the CREW suit have sought to distinguish Mississippi:

Here's what we say in CREW v. Trump in response to DOJ's invocation of Mississippi v. Johnson. @steve_vladeck @JameelJaffer @jostonjustice pic.twitter.com/lZ1eBFf3hz

— Deepak Gupta (@deepakguptalaw) August 12, 2017

As should by now be clear, I think this analysis is basically spot-on. I’m not sure the Guantánamo habeas cases are as helpful as folks tend to think (partly because other Respondents were named; partly because habeas is a legal, not equitable remedy; and partly because it’s a remedy guaranteed by the Constitution), but as Krugman Ray and Siegel have demonstrated, there are plenty of other examples that are far more on point — and quite clearly contraindicated to Mississippi.

III.  Mississippi as a Political Question Decision

If Mississippi should not be read broadly, if there are lots of subsequent examples of courts issuing coercive relief directly against a President, and if absolute immunity does most of the work in protecting the President’s constitutional prerogative, is there anything of Mississippi worth saving?  To me, the answer is yes, but, once again, it depends on understanding the broader context of the Reconstruction litigation. As noted above, after the Court denied leave to file in Mississippi, the next test case was brought by Georgia, Florida, and Alabama — naming Secretary Stanton, not President Johnson, as the defendant. The Court also dismissed Georgia v. Stanton, but on the ground that the (exact same) dispute was not justiciable because it involved a clash of sovereign political powers (not just substantively, but in the caption), and was thus a matter for the democratic process, and not the unelected judiciary, to resolve. Say what you will about the merits of that understanding, but it obviously applies a fortiori to Mississippi. And so perhaps the best way to understand Mississippi today is as standing for the proposition that equity will not resolve a political question, which is a heck of a lot more defensible (and less inconsistent with our entire understanding of the separation of powers) than the proposition for which it is now being invoked — that equity can never enjoin the King.

So conceived, it is surely not beyond the judicial power to enjoin the President in an otherwise appropriate case — in which all of the equitable factors militate in favor of such relief, in which no subordinate can be enjoined to produce the same result, and in which the dispute is otherwise justiciable. Mississippi met neither of those criteria, since, as Georgia demonstrated, a subordinate was available and the merits of the suit were non-justiciable. To me, then, the question of whether federal courts can directly enjoin the President is, in the final analysis, much more nuanced than the Justice Department’s conclusory citation to Mississippi in the Knight case suggests, and may well depend upon the specific facts of each individual dispute.

Image Credit: Drew Angerer / Getty