Can A Federal Court Issue Mandamus Against The President?
Today, the En Banc D.C. Circuit vacated the panel ruling finding that President Trump’s removal of NLRB members was lawful. Judges Henderson, Katsas, Rao, and Walker dissented from the en banc order.
Judge Rao’s dissent, which was joined by the three other dissenters, argues forcefully that the federal court’s lack an equitable cause of action to order the reinstatement of the NLRB members. Judge Katsas made these points in his Bessent dissent.
Judge Rao further responds to Judge Millett’s panel opinion, which argued that the court could grant a writ of mandamus against the President. Judge Rao concludes that mandamus wold not be proper against the President:
Judge Millett argued in dissent that mandamus could issue against the President because he “violated a non-discretionary statutory duty by firing Harris and Wilcox without relevant justification.” See Harris, 2025 WL 980278, at *45 (Millett, J., dissenting). It is extremely doubtful that mandamus could issue against the President. While this court has at times claimed authority to issue writs of mandamus against the President, I am aware of no case in which we have taken this e
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