Lawyer: President Trump Should Be Dismissed from Challenges to His Policies

This week, our law firm will be filing amicus curiae briefs for America’s Future defending President Donald Trump’s birthright citizenship executive order in each of the three federal district courts where it was challenged.

In those amicus briefs, we will be making arguments first developed in a Birthright Citizenship Study that I originally co-authored in January 2001, explaining why  Trump is right.

However, in addition, we will be urging the courts immediately to dismiss Trump as the lead defendant.

During the first Trump administration, it became fashionable for plaintiffs to name  Trump as a defendant in actions challenging his policies, beginning with suits seeking to enjoin his immigration policies.

Leftist groups likely found their fund-raising aided, and leftist attorneys general scored political points when they could state they sued the president personally to stop him in his tracks.

During the next four years, conservative plaintiffs followed that practice by naming President Joe Biden as a defendant. Thus, by now, this practice seems quite normal — even though it is most certainly not proper.

Now that Trump issued his executive order on birthright citizenship, leftist lawyers are back to their old tricks. In all three complaints filed in Massachusetts, New Hampshire, and Washington State, Trump was identified as the lead defendant.

In Trump’s first term, acting Attorney General Sally Yates refused to defend Trump’s immigration policies and was fired for insubordination on Jan. 30, 2017.

However, even under her successors, the Department of Justice was not only reluctant to defend Trump’s immigration policies, but also was slow to protect the office of the president.

Our firm felt the principle to be of great importance and filed three amicus briefs defending Trump’s immigration policies, where we urged the courts to dismiss him as a party defendant. (See IRAP v. Trump in the Fourth Circuit; Hawaii v. Trump in the Ninth Circuit; DHS v. Regents, U. Cal. in the Supreme Court.)

Those suits could continue against subordinate federal officers, but it would have ended the public perception that the president could be hauled into court and ordered around by an unelected federal district court judge.

Showing there is a new sheriff in town, the Trump Justice Department has now raised this important issue in the concluding paragraph of its Opposition filed in Washington State, and we urge it to file motions to dismiss the president in all three cases.

The Supreme Court has been clear that courts generally “ha[ve] no jurisdiction … to enjoin the President in the performance of his official duties.” Franklin v. Massachusetts, 505 U.S. 788, 803 (1992).

In Franklin, the Supreme Court explained that, while a district court could enjoin an executive branch official, it could not enjoin the president. In striking down an injunction against a president, the Supreme Court seemed astonished it had been issued: “the District Court’s grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows.” Id. at 802.

Concurring in Franklin, Justice Scalia went even further, asserting that “[i]t is a commentary upon the level to which judicial understanding — indeed, even judicial awareness — of the doctrine of separation of powers has fallen, that the District Court entered this order against the President without blinking an eye.” Id. at 826. Justice Scalia noted that, up until at least 1984, “‘[n]o court has ever issued an injunction against the president himself or held him in contempt of court.’” Id. at 827.

For most of the nation’s history, it had been understood that such suits may not be filed against the president.

In Marbury v. Madison, 5 U.S. 137 (1803), it was President Thomas Jefferson who made the decision not to deliver outgoing President John Adams’s appointments, but it was Secretary of State James Madison who was named as the defendant in the case.

In 1838, the high court observed that “The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power.” Kendall v. United States, 37 U.S. 524, 610 (1838).

The specific issue of an injunction against the president was considered by the U.S. Supreme Court in Mississippi v. Johnson, 71 U.S. 475 (1866), involving Mississippi’s suit to enjoin President Andrew Johnson from enforcing the Reconstruction Acts.

Although leaving open the question of whether the president could be ordered to perform mere ministerial acts, the court made clear that “this court has no jurisdiction … to enjoin the President in the performance of his official duties….” Id. at 501.

Since Trump cannot lawfully be enjoined, then no judge should allow a suit against him to continue. Although the challenges may proceed against the other federal defendants, they should be dismissed forthwith against the president.