1. The President of the United States cannot be restrained by
injunction from carrying into effect an act of Congress alleged to
be unconstitutional, nor will a bill having such a purpose be
allowed to be filed.
2. It makes no difference whether such incumbent of the
Presidential office be described in the bill as President or simply
as a citizen of a State.
This was a motion made by Messrs. Sharkey and R. J. Walker, on
behalf of the State of Mississippi, for leave to file a bill in the
name of the State praying this court perpetually to enjoin and
restrain Andrew Johnson, a citizen of the State of Tennessee and
President of the United States, and his officers and agents
appointed for that purpose, and especially E. O. C. Ord, assigned
as military commander of the district where the State of
Mississippi is, from executing or in any manner carrying out two
acts of Congress named in the bill, one "An act for the more
efficient government of the rebel States," passed March 2d, 1867,
notwithstanding the President's veto of it as unconstitutional, and
the other an act supplementary to it, passed in the same way March
23d, 1867, acts commonly called the Reconstruction Acts.
The former of these acts, reciting that no legal State
governments or adequate protection for life or property now exists
in the rebel States of Virginia, North Carolina, South Carolina,
Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and
Arkansas, and that it was necessary that peace and good order
should be enforced in them until loyal and republican State
governments could be legally established, divided the States named
into five military districts, and made it the duty of the President
to assign to each one an officer of the army, and to detail a
sufficient military force to enable him to perform his duties and
enforce his authority within his district. It made it the duty of
this officer to protect all persons in their rights, to suppress
insurrection, disorder, violence, and to punish, or cause to be
punished, all disturbers of the public peace and criminals, either
through the local civil tribunals or through military
Page 71 U. S. 476
commissions, which the act authorized. It provided further that,
on the formation of new constitutions and certain conditions which
the act prescribed, the States respectively should be declared
entitled to representation in Congress, and the preceding part of
the act become inoperative, and that, until they were so admitted,
any civil governments which might exist in them should be deemed
provisional only, and subject to the paramount authority of the
United States at any time to abolish, modify, control, or supersede
it.
The second of the two acts related chiefly to the registration
of voters who were to form the new constitutions of the States in
question.
The bill set out the political history of Mississippi so far as
related to its having become one of the United States, and
"that forever after, it was impossible for her people, or for
the State in its corporate capacity, to dissolve that connection
with the other States, and that any attempt to do so by secession
or otherwise was a nullity,"
and she "now solemnly asserted that her connection with the
Federal government was not in anywise thereby destroyed or
impaired," and she averred and charged
"that the Congress of the United States cannot constitutionally
expel her from the Union, and that any attempt which practically
does so is a nullity."
The bill then went on:
"The acts in question annihilate the State and its government by
assuming for Congress the power to control, modify, and even
abolish its government -- in short, to exert sovereign power over
it -- and the utter destruction of the State must be the
consequence of their execution. They also violate a well known
salutary principle in governments, the observance of which can
alone preserve them, by making the civil power subordinate to the
military power, and thus establish a military rule over the States
enumerated in the act, and make a precedent by which the government
of the United States may be converted into a military despotism in
which every man may be deprived of his goods, lands, liberty, and
life, by the breath
Page 71 U. S. 477
of a military commander or the sentence of the military
commission or tribunal, without the benefit of trial by jury and
without the observance of any of those requirements and guarantees
by which the Constitution and laws so plainly protect and guard the
rights of the citizen. And, the more effectually to accomplish this
purpose, the said acts divide the ten Southern States into five
military districts, and make it the duty of the President to assign
an officer to the command of each district, and to place a
sufficient force under him whose will is to be the law and his
soldiers the power that executes it. It is declared to be his duty
to protect all persons in their rights of person and property, to
suppress insurrections, disorder, and violence, and to punish, or
cause to be punished, all disturbers of the peace and criminals,
and he may organize military commissions and tribunals to try
offenders when he may think proper. But by what rule or law is he
to judge of the rights of person or property? By what rule or law
is he to arrest, try, and punish criminals? By what rule or law is
he to judge whether they have committed crimes? The answer to these
questions is plain -- by his own will, for, though he may adopt the
State authorities as his instruments if he will, yet he may reject
them if he will. A scope of power so broad, so comprehensive, was
never before vested in a military commander in any government which
guards the rights of its citizens or subjects by law. It embraces
necessarily all those subjects over which the States reserved the
power to legislate for themselves as essential to their existence
as States, including the domestic relations, all the rights of
property, real and personal, the rights of personal security and
personal liberty, and assumes the right to control the whole of the
domestic concerns of the State. These acts also provide that the
governments now existing in the Southern States are but provisional
governments, subject to the paramount authority of Congress, which
may at any time abolish, modify, control, or supersede them."
It then charged that, from information and belief, the said
Andrew Johnson, President, in violation of the Constitution and in
violation of the sacred rights of the States, would proceed,
notwithstanding his vetoes, and as a
mere ministerial
duty, to the execution of said acts as though they
Page 71 U. S. 478
were the law of the land, which the vetoes prove he would not do
if he had any discretion, or that in doing so he performed anything
more than a mere ministerial duty; and that with the view to the
execution of said acts he had assigned General E. O. C. Ord to the
command of the States of Mississippi and Arkansas.
Upon an intimation made a few days before by Mr. Sharkey, of his
desire to file this bill, the Attorney General objected to it
in limine, as containing matter not fit to be received.
The Chief Justice then stated that while, as a general thing, a
motion to file a bill was granted as of course, yet if it was
suggested that the bill contained scandalous or impertinent matter,
or was in other respects improper to be received, the court would
either examine the bill or refer it to a master for examination.
The only matter, therefore, which would now be considered was the
question of leave to file the bill.
Page 71 U. S. 497
The CHIEF JUSTICE delivered the opinion of the court.
A motion was made, some days since, in behalf of the State of
Mississippi, for leave to file a bill in the name of the State,
praying this court perpetually to enjoin and restrain Andrew
Johnson, President of the United States, and E. O. C. Ord, general
commanding in the District of Mississippi and Arkansas, from
executing, or in any manner carrying out certain acts of Congress
therein named.
The acts referred to are those of March 2d and March 23d, 1867,
commonly known as the Reconstruction Acts.
The Attorney General objected to the leave asked for upon
Page 71 U. S. 498
the ground that no bill which makes a President a defendant and
seeks an injunction against him to restrain the performance of his
duties as President should be allowed to be filed in this
court.
This point has been fully argued, and we will now dispose of
it.
We shall limit our inquiry to the question presented by the
objection, without expressing any opinion on the broader issues
discussed in argument whether, in any case, the President of the
United States may be required, by the process of this court, to
perform a purely ministerial act under a positive law, or may be
held amenable, in any case otherwise than by impeachment for
crime.
The single point which requires consideration is this: can the
President be restrained by injunction from carrying into effect an
act of Congress alleged to be unconstitutional?
It is assumed by the counsel for the State of Mississippi that
the President, in the execution of the Reconstruction Acts, is
required to perform a mere ministerial duty. In this assumption
there is, we think, a confounding of the terms ministerial and
executive, which are by no means equivalent in import.
A ministerial duty the performance of which may, in proper
cases, be required of the head of a department by judicial process
is one in respect to which nothing is left to discretion. It is a
simple, definite duty, arising under conditions admitted or proved
to exist and imposed by law.
The case of
Marbury v. Madison, Secretary of State,
[
Footnote 1] furnishes an
illustration. A citizen had been nominated, confirmed, and
appointed a justice of the peace for the District of Columbia, and
his commission had been made out, signed, and sealed. Nothing
remained to be done except delivery, and the duty of delivery was
imposed by law on the Secretary of State. It was held that the
performance of this duty might be enforced by mandamus issuing from
a court having jurisdiction.
Page 71 U. S. 499
So, in the case of
Kendall, Postmaster General v. Stockton
& Stokes, [
Footnote 2]
an act of Congress had directed the Postmaster General to credit
Stockton & Stokes with such sums as the Solicitor of the
Treasury should find due to them, and that officer refused to
credit them with certain sums so found due. It was held that the
crediting of this money was a mere ministerial duty the performance
of which might be judicially enforced.
In each of these cases, nothing was left to discretion. There
was no room for the exercise of judgment. The law required the
performance of a single specific act, and that performance, it was
held, might be required by mandamus.
Very different is the duty of the President in the exercise of
the power to see that the laws are faithfully executed, and, among
these laws, the acts named in the bill. By the first of these acts,
he is required to assign generals to command in the several
military districts, and to detail sufficient military force to
enable such officers to discharge their duties under the law. By
the supplementary act, other duties are imposed on the several
commanding generals, and these duties must necessarily be performed
under the supervision of the President as commander-in-chief. The
duty thus imposed on the President is in no just sense ministerial.
It is purely executive and political.
An attempt on the part of the judicial department of the
government to enforce the performance of such duties by the
President might be justly characterized, in the language of Chief
Justice Marshal, as "an absurd and excessive extravagance."
It is true that, in the instance before us, the interposition of
the court is not sought to enforce action by the Executive under
constitutional legislation, but to restrain such action under
legislation alleged to be unconstitutional. But we are unable to
perceive that this circumstance takes the case out of the general
principles which forbid judicial interference with the exercise of
Executive discretion.
Page 71 U. S. 500
It was admitted in the argument that the application now made to
us is without a precedent, and this is of much weight against
it.
Had it been supposed at the bar that this court would, in any
case, interpose by injunction to prevent the execution of an
unconstitutional act of Congress, it can hardly be doubted that
applications with that object would have been heretofore addressed
to it.
Occasions have not been wanting.
The constitutionality of the act for the annexation of Texas was
vehemently denied. It made important and permanent changes in the
relative importance of States and sections, and was by many
supposed to be pregnant with disastrous results to large interests
in particular States. But no one seems to have thought of an
application for an injunction against the execution of the act by
the President.
And yet it is difficult to perceive upon what principle the
application now before us can be allowed and similar applications
in that and other cases have been denied.
The fact that no such application was ever before made in any
case indicates the general judgment of the profession that no such
application should be entertained.
It will hardly be contended that Congress can interpose in any
case to restrain the enactment of an unconstitutional law, and yet
how can the right to judicial interposition to prevent such an
enactment, when the purpose is evident and the execution of that
purpose certain, be distinguished in principle from the right to
such interposition against the execution of such a law by the
President?
The Congress is the legislative department of the government;
the President is the executive department. Neither can be
restrained in its action by the judicial department, though the
acts of both, when performed, are, in proper cases, subject to its
cognizance.
The impropriety of such interference will be clearly seen upon
consideration of its possible consequences.
Suppose the bill filed and the injunction prayed for allowed. If
the President refuse obedience, it is needless to
Page 71 U. S. 501
observe that the court is without power to enforce its process.
If, on the other hand, the President complies with the order of the
court and refuses to execute the acts of Congress, is it not clear
that a collision may occur between the executive and legislative
departments of the government? May not the House of Representatives
impeach the President for such refusal? And in that case, could
this court interfere in behalf of the President, thus endangered by
compliance with its mandate, and restrain by injunction the Senate
of the United States from sitting as a court of impeachment? Would
the strange spectacle be offered to the public world of an attempt
by this court to arrest proceedings in that court?
These questions answer themselves.
It is true that a State may file an original bill in this court.
And it may be true, in some cases, that such a bill may be filed
against the United States. But we are fully satisfied that this
court has no jurisdiction of a bill to enjoin the President in the
performance of his official duties; and that no such bill ought to
be received by us.
It has been suggested that the bill contains a prayer that, if
the relief sought cannot be had against Andrew Johnson, as
President, it may be granted against Andrew Johnson as a citizen of
Tennessee. But it is plain that relief as against the execution of
an act of Congress by Andrew Johnson is relief against its
execution by the President. A bill praying an injunction against
the execution of an act of Congress by the incumbent of the
presidential office cannot be received, whether it describes him as
President or as a citizen of a State.
The motion for leave to file the bill is, therefore,
DENIED.
[
Footnote 1]
5 U. S. 1 Cranch
137.
[
Footnote 2]
37 U. S. 12
Pet. 527.
