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.