added).3 4
See also Clinton v. Jones. 520 U.S. 681, 718-19,117 S.Ct. 1636,1656 (1997) (Breyer. J. concurring) (referencing the plurality and concurring opinion in Franklin, and "the 'apparently unbroken historical tradition-implicit in the separation of powers' that a President may not be ordered by the Judiciary to perform particular Executive acts"); Swan v. Clinton. 100 FJd 973, 977 (D.C. Cir. 1996) (reiterating that the courts have no jurisdiction to enjoin the President in his official acts, nor do they have the power to issue declaratory relief against the President); Made in the U.S.A. Foundation v. United States. 242 F.3d 1300, 1310 (n.24) (11th Cir. 2001) (recognizing the same principles).
The court's point was also instructively brought home by Justice Scalia in dissent on a political question issue unrelated to the present one, when he used as an example: "It seems to me clear that courts would not entertain, ... an action for backpay by a dismissed Secretary of State claiming that the reason he lost his Government job was that the President did not like his religious views- surely a colorable violation of the First Amendment." Webster v. Doe. 486 U.S. 592, 613-14,108 S.Ct. 2047.2059 (1988) (Scalia, J. dissenting). The relevant point to be drawn here is that certain grievances are off the judicial table no matter how colorable the First Amendment violation may be. //// ////
3 Although the President's counsel made a somewhat similar argument in her merits analysis, the Supreme Court recognizes the issue of enjoining the President as a threshold jurisdictional issue, even separate from a standing issue. Because the issue of enjoining the President goes to the authority of the court to act, the issue may be raised sua sponte by the undersigned.
''The Supreme Court left open the possibility that the President could be enjoined for some ministerial act; however, no one herein contends that the decision to utilize prayer at the inauguration, or the decision on how to frame the prayer, was ministerial. Moreover, no contention has been expressed that the Presidential inauguration, including its associated ceremonies, is not part of the official duties of the President.
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