Constitution Daily

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An old constitutional question in the Trump Twitter case

June 1, 2018 by Scott Bomboy

 

If a federal judge wants Donald Trump to stop blocking users on his Twitter account, does the President need to comply? Or is the act of asking so outside of the Constitution?

Those seem to be the core questions scholars are considering after last week’s decision by Judge Naomi Reice Buchwald in Knight First Amendment Institute v. Trump. In her 75-page opinion from the United States District Court Southern District Of New York, Buchwald made it clear she believed the President’s decision to block some critics from participating in his Twitter feed raised First Amendment issues.

“The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President's personal First Amendment interests,” Buchwald said.

Equally noteworthy was what Buchwald didn’t do, and that was directly issue an injunction forcing President Trump and Social Media Director Dan Scavino to “unblock” the banned followers. Instead, Buchwald issued a declaratory judgment that “the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment.”

Buchwald said the injunction wasn’t needed at the time, because her statement should have the same effect. “Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional,” she said.

After the decision, several defendants said they were still blocked from Trump’s account in a report from Newsweek on May 24.

If so, on the surface the acts would come from the Andrew Jackson playbook. After a decision from the Marshall Court involving the Cherokee Indians and the state of Georgia, Jackson reportedly said, “John Marshal has made his decision. Now, let him enforce it.” (There’s better evidence Jackson said something like that privately in a letter to a friend, John Coffee.)

But the President’s legal team was adamant during arguments that a Supreme Court precedent set in a case from another President named Andrew – Andrew Johnson – firmly establishes that the head of the Executive Branch can’t take direct orders from a federal judge – even ones that were strongly suggested by Judge Buchwald.

“This Court does not have jurisdiction to redress Plaintiffs’ alleged First Amendment injury. To do so would require an injunction ordering the President to ‘unblock’ particular individuals—relief that this Court cannot award,” said the Justice Department, citing the Mississippi v. Johnson decision from 1867. “As the Supreme Court acknowledged more than a century ago, courts lack jurisdiction ‘to enjoin the President in the performance of his official duties.’”

The Mississippi v. Johnson precedent, the department argued, clearly said a court doesn’t have jurisdiction to enforce a “purely executive and political” task performed by the President.

Legal scholar Steve Vladeck discussed this debate last August in detail in the blog Just Security, and how rare such a challenge would be the separation of powers doctrine.

“For a host of reasons, the Knight case may raise the question more directly — and may eventually provide the Supreme Court with the first opportunity in 150 years to revisit one of the least-well-understood of its major separation-of-powers decisions,” Vladeck said.

Vladeck didn’t see it as a simple debate. “The question of whether federal courts can directly enjoin the President is, in the final analysis, much more nuanced than the Justice Department’s conclusory citation to Mississippi in the Knight case suggests, and may well depend upon the specific facts of each individual dispute.”

Eugene Volokh, the scholar from the popular Volokh Conspiracy blog, believed that if the President and his team didn’t unblock the defendants from Twitter, it could be part of a legal strategy.

“In theory, if Trump doesn't immediately unblock the plaintiffs, and insists on waiting until the outcome of the appeal, the plaintiffs could go to court to ask the judge to issue an injunction; but that seems unlikely, so long as Trump's not unblocking the plaintiffs seems to stem from a good-faith attempt to get an appellate judgment on the matter,” Volokh concluded.

In the Library of Congress’ Constitution Annotated, the authoritative record of precedential court decisions, it notes the unique nature of the 1866 case. “Rare has been the opportunity for the Court to elucidate its opinion in Mississippi v. Johnson, and, in the Watergate tapes case, it held the President amenable to subpoena to produce evidence for use in a criminal case without dealing, except obliquely, with its prior opinion.”

Back in 1866, Chief Justice Salmon Chase didn’t decide if a President could be forced by a court to perform a “purely ministerial act under a positive law” required [by] the head of a department by judicial process’ in which “nothing is left to discretion.”

In 2018, Judge Buchwald indicated that the act of ordering the President and Scavino to unblock Twitter followers could fall into the category of a ministerial duty. Citing two district court decisions, Buchwald said “an injunction directing the unblocking of the individual plaintiffs would therefore impose a duty that far more closely resembles the duties considered in Swan and in National Treasury Employees Union v. Nixon (defining a ‘ministerial duty’ as ‘a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law’), than the highly discretionary duty considered in Mississippi v. Johnson.”

Buchwald also left open the option of ordering an injunction against just Scavino, and not President Trump, if the declaratory judgment was ignored. “We need not, however, ultimately resolve the question of whether injunctive relief may be awarded against the President, as injunctive relief directed at Scavino and declaratory relief remain available,” she said.

Scott Bomboy is the editor in chief of the National Constitution Center.

 

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