Can A Federal Court Issue Mandamus Against The President?

Today, the En Banc D.C. Circuit vacated the panel ruling finding that President Trump’s removal of NLRB members was lawful. Judges Henderson, Katsas, Rao, and Walker dissented from the en banc order.

Judge Rao’s dissent, which was joined by the three other dissenters, argues forcefully that the federal court’s lack an equitable cause of action to order the reinstatement of the NLRB members. Judge Katsas made these points in his Bessent dissent.

Judge Rao further responds to Judge Millett’s panel opinion, which argued that the court could grant a writ of mandamus against the President. Judge Rao concludes that mandamus wold not be proper against the President:

Judge Millett argued in dissent that mandamus could issue against the President because he “violated a non-discretionary statutory duty by firing Harris and Wilcox without relevant justification.” See Harris, 2025 WL 980278, at *45 (Millett, J., dissenting). It is extremely doubtful that mandamus could issue against the President. While this court has at times claimed authority to issue writs of mandamus against the President, I am aware of no case in which we have taken this extraordinary step. To the contrary, we have repeatedly declined to issue the writ “in order to show the utmost respect to the office of the Presidency and to avoid … any clash between the judicial and executive branches of the Government.” Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587, 616 (D.C. Cir. 1974); see also Nat’l Wildlife Fed’n v. United States, 626 F.2d 917, 928 (D.C. Cir. 1980) (declining to issue mandamus against the President). . . .

Furthermore, it is difficult to see how mandamus to reinstate officers removed by the President could ever be appropriate. “Although the remedy by mandamus is at law, its allowance is controlled by equitable principles, and it may be refused for reasons comparable to those” governing a court of equity. United States ex rel. Greathouse v. Dern, 289 U.S. 352, 359 (1933) (cleaned up). For this court to order the performance of executive acts vested exclusively in the President would “at best create[] an unseemly appearance of constitutional tension and at worst risk[] a violation of the constitutional separation of powers.” Swan, 100 F.3d at 978; see also Johnson, 71 U.S. at 499 (rebuffing the idea of ordering the President to perform executive acts as “an absurd and excessive extravagance”) (cleaned up). These constitutional concerns render mandamus—an extraordinary writ—wholly inappropriate in these removal cases.

If only William Marbury had asked the federal trial court in the District Court for mandamus against President Jefferson! I’m sure that would have gone over well.

Judge Rao has to be correct on this point. Moreover, under Mississippi v. Johnson, I don’t think the Court could issue any type of injunction against the President concerning reinstatement. The D.C. Circuit seems to rely on the “fiction” that an injunction could run against other officers in the executive branch. But this fiction simply doesn’t work.

I remain concerned that the Supreme Court will punt on the merits question and simply hold that the district court’s remedy was improper. That would leave open the legal question about whether the removals were valid. That may seem like a way to duck the question, but it would create even more chaos down the road. Stop kicking the can down the road.

Judge Henderson’s pithy dissent argues that the Supreme Court should decide this issue sooner rather than later:

We do the parties (especially a functioning executive branch) no favors by unnecessarily delaying Supreme Court review of this significant and surprisingly controversial aspect of Article II authority. Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better.

I agree. The Court has a rendezvous with Humphrey.

The post Can A Federal Court Issue Mandamus Against The President? appeared first on Reason.com.