Can A Federal Court Issue Mandamus Against The President?

Judge Rao: "It is extremely doubtful that mandamus could issue 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.

Comments

[Martinned2]

Well yes, obviously we can’t have any suggestion that there might be checks and balances involved in the US system of government.

[Purple Martin]

But, but, but...Josh says "Judge Rao has to be correct on this point." So there!

[Dan Lo Pan 2]

Why does he quote so extensively from the dissent and not the actual ruling?

[Jon S]

Those only exist when Democrats are President. Josh hasn't said a peep about extra-statutory actions by the President despite railing against it for the last four years. And non-delegation/major questions issues? To Josh, upending the entire global economy with crazy, across-the-board tarriffs is no biggie so of course Trump is allowed to do it under the major questions doctrine, but excusing student loans is definitely a major question Congress never meant to delegate.

[Bored Lawyer]

The major questions doctrine is distinct from whether Congress delegated something to the president. The former is a Constitutional limit on delegation. The latter involves interpreting acts of Congress as to whether there was a delegation.

[David Nieporent]

The MQD is not a constitutional limit on delegation; the non-delegation doctrine is. The MQD is an interpretative canon that says the courts will not assume that vague language is a congressional grant of authority to decide, well, major questions.

[Riva]

Hold on there little man. Before we get to major questions doctrine questions, I think you should take a moment to try to learn about the constitutional separation of powers. Maybe you should ask Judge Rao to explain it to you?

[Jon S]

South Houston Law School Professor's constitutional law analysis.

[Jon S]

"The latter involves interpreting acts of Congress as to whether there was a delegation."

Thanks dude, that's exactly what I said: "[E]xcusing student loans is definitely a major question Congress never meant to delegate."

[Jon S]

Has Josh actually read Marbury? First, it was Marbury v. Madison, not Marbury v. Jefferson. Madison was Secretary of State. Second, Marshall definitely says mandamus was an apporpriate remedy but the suit was just filed in the wrong Court (now that was dicta, but so was just about everything else in Marbury).

[Darwinnie]

Well, he teaches constitutional law, so . . . ? I’m actually amazed how much attention he gets for basically just quoting parts of an opinion and arguing that his favored judge is obviously correct.

[Katall]

Ok. If SCOTUS finds the president exceeded his authority and violated the separation of powers, what recourse does the Judiciary have? Is the only recourse impeachment and conviction? If so, this means the president is above the law (but not politics).

[SRG2]

The common law of England and Wales would have permitted a writ of mandamus against the Executive which should mean that SC can do so against the president as head of the Executive (unless he could argue that he was acting in his capacity as head of state where there could be no British precedent) which should suffice except that we'll hear that history and tradition are against it.

[Stupid Government Tricks]

Counselor, I plead ignorance here. What's the difference between "the Executive" and "head of state"? Nowadays I would say it's "Prime Minister" and "King Charles", but English kings were definitely executives in one form or another in 1707 (1703?) and for a century after, more or less.

[Kazinski]

He must mean executives not the King.

The sovereign had immunity, ex non potest peccare.

[SRG2]

IANAL (though I did study Jurisprudence as an undergrad, with lamentably poor results). The Cabinet is the executive, not the prime minister, who is primus inter pares. The Privy Council would have been the executive earlier.

[Stupid Government Tricks]

Thanks. In hindsight, I see I should have figured that out, but I've been wearing glasses for years.

[Martinned2]

Individual Secretaries of State are the executive. Legally, that's where the decisions are always made. (And therefore that's who ends up being the defendant in judicial review proceedings even when politically the matter was settled in cabinet.)

[Old Smokin' Egg]

I'm looking forward to reading Prof. Blackman's column, due in three years or so, explaining why the courts clearly don't have the power to keep Donald Trump from running for a third term.

[SRG2]

And why the dissent in the SC/DC Court, etc. got it right.

[Jon S]

The analysis of the latter issue will be "Judge Rao is obviously correct" and/or some of his buddy in Ireland's nonsense explaining that "President" has a unique meaning in the 12th amendment different from the 22nd.

[Kazinski]

The question may get to the Supreme Court even sooner than this case.

Judge Xinis' order to the executive is essentially a mandamus to the President, telling him to wield his inherent power to conduct foreign relations to retrieve Garcia from El Salvador.

Roberts did not join the stay granted regarding order to pay the Teachers DEI training, but it was too much for the rest of the court to go along with. The order to conduct diplomacy on demand was evidently too much for Roberts this afternoon.

And I think we already know what Roberts thinks about the President firing officials that Congress has given removal protections to from Seila Law (Yes, the same Roberts that wrote Trump v US).

[fatnastyretiredguy]

What the hell? If the President does not have legal authority to fire these folks, then whatever action he took in attempting to accomplish the act of firing is void. No reappointment is necessary as they were never lawfully removed from their positions. No reinstatement is needed. Prof. Blackman strikes (out) again. And apparently Judge Rao forgot to put his noon common sense pill in his lunch box the day he scribbled his dissent. Normally a thoughtful guy, but unbelievably missed the target on this shot.

[Kazinski]

"Judge Rao forgot to put his noon common sense pill in his lunch box the day he scribbled his dissent. Normally a thoughtful guy..."

Are you and Naomi on a first name basis? you seem to know her him her well.

[Life of Brian]

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.

Of course not. This is like a nuclear arsenal, realistically only valuable as a deterrent.

Any situation where they actually feel like they NEED to issue a mandamus is likely one where the president flips them the proverbial bird and it becomes immediately and painfully evident that they're out of moves.

[mse326]

You can't simultaneously believe in 1) a unitary executive, 2) mandamus as ever proper against an executive official, and 3)it can't be issued against a President. The unitary executive has all executive actors as agents of the President, if you can't mandamus the priniple you can't mandamus the agent. So at least one of those 3 must be false.

[Martinned2]

Here is the Court of Appeal of England and Wales (per Lord Denning) considering whether to overrule a decision of the Medical Appeal Tribunal with a writ of certiorari or a writ of mandamus: https://www.bailii.org/ew/cases/EWCA/Civ/1957/1.html

The value of this ancient writ of certiorari is well shown by the present case in which-it is only by reason of it that a workman blinded at work obtains the industrial insurance benefit to which he is by law entitled, as now acknowledged on all hands. The order must issue to quash the declaration 6f the Medical Appeal Tribunal of the 13th June, 1956. There is no need for a mandamus because the Tribunal will no doubt consider the claim afresh and come to a right decision on it.

[Martinned2]

Here is the UK Supreme Court, sitting as a court of Northern Ireland, requiring the executive to provide legal aid:

15. The judge made an order of mandamus requiring the respondent, the Department of Justice, to take all necessary steps to make the applicant's right to legal aid effective. He found that a modest adjustment to the scheme under the amended 2005 Rules was required or that some other provision had to be made to deal with the exceptional and unusual circumstances of the case and to avoid the injustice that would otherwise result.
(...)
34. At the conclusion of the hearing of the appeal, this court announced that it would allow the appeal for reasons to be given later. This judgment contains those reasons. At the time that the appeal was allowed, it was stated that we had concluded that a declaration should be substituted for the order of mandamus made by Treacy J. When he granted judicial review an order of mandamus was appropriate. Now that the Department has accepted that the 2005 Rules require to be amended to allow for payment for preparatory work undertaken by a new legal representative, mandamus is no longer necessary.

https://www.bailii.org/uk/cases/UKSC/2014/4.html

[Martinned2]

Here is the High Court in an asylum case rejecting mandamus as a remedy.

I consider that it would be wholly inappropriate for a court to grant such relief. The courts can identify breaches of the law by the Secretary of State, but I would be trespassing on the Respondent's own discretion if I were to formulate an injunction or mandamus directing him how to deal with these cases in the future. Furthermore, in my view I would be trespassing on the function of Parliament if I were to try to hold the Minister to account to the court for his future conduct in the manner proposed. Ministers report and are accountable to Parliament, not to the courts. Even if I were to find that the respondent was in continuing breach of his legal obligations, it would be quite wrong to assume that he would be unwilling to abide by those legal obligations in the future in accordance with any judgment I would give, yet that seems to me to be the assumption that would need to be made if any such order were even to be considered. There is no basis at all for making that assumption here.

https://www.bailii.org/ew/cases/EWHC/Admin/2000/348.html