Discussion
A. The Court Lacks Jurisdiction to Enjoin the President
Newdow correctly sued President Bush in his official capacity, Complaint at 2, as a suit against President Bush, as an individual, would make no sense in the context of his allegations, i.e., that the government was "establishing" or sponsoring a religion when it permitted prayer at the inauguration. See in re Lindsey. I58F.3d 1263,1278-79 (D.C.Cir. 1998) (contrasting the President as an individual and as head of the Executive Branch of government.).2 President Bush, acting as an individual, could not sponsor religion on behalf of the federal government. Moreover, suing President Bush in his official capacity solves one piece of the standing issue in that if the Office of the President is sued, the argument posed by the President that it is speculative to believe that he will be re-elected, falls by the wayside. It is not speculative to believe that the Office of President will continue indefinitely. Thus, the issue is squarely raised concerning whether the courts have the authority to enjoin the President as head of the Executive Branch.
While injunctive relief against executive officials like the Secretary of Commerce is within the courts' power, see Youngstown Sheet & Tube Co. v. Sawyer, supra, the District Court's grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows. We have left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely "ministerial" duty, Mississippi v. Johnson. 4 Wall. 475, 498-499, 18 L.Ed. 437 (1867), and we have held that the President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution, United States v. Nixon. 418 U.S. 683, 94 S.Ct. 3090. 41 L.Ed.2d 1039 (1974), but in general "this court has no jurisdiction of ci bill to enjoin the President in the performance of his official duties." Mississippi v. Johnson. supra. 4 Wall.. at 501. At the threshold, the District Court should have evaluated whether injunctive relief against the President was available, and, if not, whether appellees' injuries were nonetheless redressable.
Franklin v. Massachusetts. 505 U.S. 788, 802-03, 112 S.Ct. 2767, 2776-77 (1992) (emphasis
^hus, the President's counsel has not disputed venue or raised personal jurisdiction questions which would be apparent if the President, in his individual capacity, were being sued. Nor does the court face the thorny problems involved when one attempts to sue a sitting president in his individual capacity, including the possibility that the entire action might be stayed pending completion of the President's term in office. See Clinton v. Jones. 520 U.S. 681, 117 S.Ct. 1636 (1997).
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