Yes, President Trump, Courts Can Order You to Follow the Law

By
Owen Keiter
May 15, 2018

Owen Keiter is a 2018 graduate of Columbia Law School and a former intern at the Knight First Amendment Institute at Columbia University.


It’s no secret that the current president has attracted quite a bit of litigation, much of it raising serious issues about the constitutionality of his official actions. Groups have successfully challenged his so-called “Muslim ban” executive orders in International Refugee Assistance Program v. Trump and other cases; his planned ban on military service by openly transgender Americans in Stone v. Trump and companion cases; and his executive order that the Executive Branch repeal two regulations for each new one issued in Public Citizen, Inc. v. Trump. In both The District of Columbia v. Trump and Blumenthal v. Trump, plaintiffs allege that Trump has violated the Emoluments Clause of the Constitution by accepting bribes from foreign nations. And in Knight First Amendment Institute v. Trump, the Knight Institute challenges the President’s practice of blocking Twitter users from his @realDonaldTrump account based on their political viewpoints.  These cases are diverse, but they have something in common.  In each of them, the Trump administration has advanced a novel and deeply troubling claim: The court has no authority to order the president to follow the Constitution and laws of the United States.

The argument proceeds like this: in an old Reconstruction-era case, Mississippi v. Johnson, the Supreme Court invoked the constitutional separation of powers in concluding that courts generally should not order the president to take, or to refrain from taking, actions within the scope of his executive discretion. Because nearly every action that the president takes in office involves some measure of discretion, the administration asserts, the courts cannot issue an injunction (or a declaration of the law, for that matter) that would prevent the president from taking whatever action he likes his official capacity.

Almost none of that argument holds water.

In several recent lawsuits, the Trump administration has advanced a novel and deeply troubling claim: The court has no authority to order the president to follow the Constitution.

Mississippi was an action brought by Southern states to bar President Johnson and a group of his subordinate officials from carrying out the Reconstruction Acts, which they deemed unconstitutional. Understandably, the Supreme Court was hesitant to wade into this political morass; it worried quite reasonably that a ruling one way or the other could set off unprecedented interbranch conflict between the Southern-leaning president and Northern-dominated Congress — in the immediate aftermath of the Civil War, no less.  The result was a brief and opaque opinion that ostensibly stood for the proposition that the executive could not “be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional.” It contained, however, quite a bit of dicta in turns expanding and limiting this proposition, the broadest assertion being that the court “has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” (Whatever the rule actually was, it apparently applied to all executive branch officials, not just the president, because the Court dismissed the action against all defendants.) A follow-up action, Georgia v. Stanton, clarified the Court’s concern in Mississippi: Faced with an identical action against subordinate officials only, the court again declared its unwillingness to be drawn into the purely “political question” presented.

Thus, as amici in the Twitter case explained to the court, Mississippi stands as an early entry in the line of cases underlying the political question doctrine, and not much more. Indeed, cases like Baker v. Carr — the wellspring of the political question doctrine — cite Mississippi and Georgia for the rule that courts should not wade into issues reserved to the political branches of the government. As for the argument that the courts cannot interfere with executive officials’ discretion, it’s true as far as it goes, but it’s really just another branch of the political question doctrine. Obviously, courts will not make decisions that are committed to the discretion of other officials within the constitutional system. But that does not mean that the officials have “discretion” to violate the Constitution. As the Supreme Court has reaffirmed time and time again, they do not.

Courts have abandoned Mississippi’s narrow holding in granting injunctions against the enforcement of unconstitutional acts of Congress by the executive branch. For one example out of many, in Clinton v. City of New York, the Supreme Court affirmed the lower court’s grant of a declaratory judgment against the president holding the Line Item Veto Act unconstitutional. Nor have courts embraced the broader holding the administration attributes to Mississippi — that the separation of powers prohibits courts from intruding upon the president’s official activities. To the contrary, the Supreme Court has made clear that “the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct,” and it has often done so.

The Supreme Court has made clear that 'the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct,' and it has often done so.

President Nixon learned the hard way that his administration was not immune from judicial scrutiny. In one of the most famous Supreme Court decisions of all time, the Court ordered the president to turn over the Watergate tapes, precipitating his downfall. The president had argued that the federal courts had no authority over him, because he was “as powerful a monarch as Louis XIV, only four years at a time.” The Court flatly rejected that dramatic argument, affirming its ability to subject the president to judicial authority. Since then, courts have repeatedly done just that. Notably, the Supreme Court forced President Clinton to defend a private civil action for sexual harassment (the infamous lawsuit brought by Paula Jones) while he was in office.

In an effort to reinvigorate the remnants of Mississippi’s suggestion of executive immunity, the Trump administration points to some dicta in Franklin v. Massachusetts, a 1992 opinion that briefly referenced Mississippi. There, a plurality of the Supreme Court faulted a lower court for failing to consider its jurisdiction to order the president to recalculate the census under the Enumeration Clause, observing that such an injunction was “extraordinary” and should have “raised judicial eyebrows.” This administration apparently reads “extraordinary” to mean prohibited, claiming support for its argument that the president simply cannot be enjoined, but that reading is obviously faulty.

An injunction issued against the president on constitutional grounds is indeed “extraordinary,” but only because there is almost always a lower-level official that the Court can enjoin instead. For example, in the constitutional law chestnut Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court invalidated President Truman’s wartime executive order to seize American steel mills and enjoined his Secretary of Commerce from carrying it out. In recent decisions considering the various iterations of President Trump’s travel ban, courts have followed the same tack — declining to issue an injunction or a declaration against the president directly, but enjoining his subordinates from carrying out his orders. This practice makes sense as a measure of deference to a coequal branch that sweetens the pill of judicial review. In those rare cases in which the president is the only person who can halt the illegal action, however (such as Clinton and the 1970s D.C. Circuit case NTEU v. Nixon), courts have not hesitated to issue relief against the president himself.

And with good reason. Rule by a lawless executive, unconstrained by higher authority, amounts to tyranny. The founders’ fear of backsliding into such a system of unconstrained, centralized governmental power drove them to adopt a Bill of Rights in the first place, along with the famed system of “checks and balances” that has kept American democracy more or less intact for the last two centuries. The law must be enforceable by one branch against another if it is to amount to more than mere words.

Thankfully, the courts do not seem to be following the Trump administration’s “presidential immunity” line. Recently, the federal judge overseeing the District of Columbia case rejected the argument outright, stating that it saw “no barrier to its authority to grant either injunctive or declaratory relief” against a president who violates the law. Other courts should follow this one’s lead. If our government is indeed one of laws and not of men, then the president, too, must follow the law; it is irresponsible and dangerous to suggest that he is above it.