Before the Dellinger v. Bessent case slips too far out of mind, it’s worth recollecting that the district court granted a declaratory judgment against the President of the United States. Is that permitted?

The court first quoted the core part of the federal Declaratory Judgment Act (28 U.S.C. § 2201(a)):

[I]n a case of actual controversy within its jurisdiction, … any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

Then the court gave the following very brief analysis:

The defendants challenge the Court’s power to issue a declaratory judgment directed towards the President, on the grounds that it is at bottom an injunction, and therefore subject to the traditional limits on the Court’s equitable authority to enjoin the President. Defs.’ Reply at 9–10. This seems to ignore the salutary and clarifying effects of the merger of law and equity with the adoption of the Federal Rules of Civil procedure in 1938, and the fact that Congress established the declaration as a legal remedy in the Declaratory Judgment Act.

Next the court analyzed Mr. Dellinger’s request for a final injunction. The court concluded that the injunction should issue only against defendants other than the President. In reaching that conclusion, the court noted that defendants “marshalled considerable authority” against enjoining the President and that Mr. Dellinger did not contest the point. (I will therefore assume arguendo that injunctions may not issue against the President.)

The result, then, was a declaratory judgment against all the defendants, and an injunction against all the defendants except the President. Was that correct?

The court considered one argument from the government defendants: a declaratory judgment is essentially an injunction, and therefore the traditional limits on an injunction apply to it. Ergo, if no injunctions may issue against the President, then no declaratory judgments may either.

Against this, the court gives two reasons. The first is “the salutary and clarifying effects of the merger of law and equity” in 1938. The second is “the fact that Congress established the declaration as a legal remedy in the Declaratory Judgment Act.”

I confess I am not sure what to make of the first reason. The second reason is essentially sound and only needs unpacking.

Put simply, the declaratory judgment is not an injunction. An injunction is an order for the defendant to do or not do something, but a declaratory judgment has no such command. In fact, it resolves a dispute precisely in circumstances where no command to the parties is needed. (I develop this point at length in The Myth of the Mild Declaratory Judgment.) So the government defendants’ argument, glossed by the court as being that the declaratory judgment is “at bottom” an injunction, is simply wrong. They are distinct remedies.

Still, there is a little more going on in the argument. The government defendants argued that the declaratory judgment is basically an injunction and therefore is subject to equitable limits. The first part of the argument is wrong, but it could still be the case that equitable limits apply.

But the declaratory judgment is not an equitable remedy. Equitable can mean a lot of different things (here is a primer). When applied to remedies, the term is sometimes loosely equated with “non-monetary” or “discretionary” or “specific” (as opposed to substitutionary). But any such equation is imprecise. The equitable limiting principles apply to remedies that are equitable in the sense that they were developed by courts of equity, especially the Court of Chancery. The declaratory judgment was not a historic remedy of Chancery or any other court of equity, which is why there had to be a statute authorizing it for federal courts in 1934.

Yet that still does not quite provide a final answer to the question, for Congress could have authorized a new equitable remedy. The question, therefore, must be whether the declaratory judgment is or is not an equitable remedy, which would determine whether it is accompanied by the powers and constraints that attend all the equitable remedies. (These powers and constraints are explored further in The System of Equitable Remedies.)

I will admit that every possible answer to that question can be found in some legal authority—it has been said that the declaratory judgment is legal, is equitable, is both, or is neither. But despite that fog of attribution, the functional answer is really clear: the declaratory judgment is not an equitable remedy. It is not enforced by contempt. It is not conditional. It is not subject to equitable defenses such as laches and unclean hands. It is not an in personam order. It may be given by juries.¹1. This is true even in the federal courts, though the point is little known: compare the advisory committee notes on Rule 57 with the Uniform Declaratory Judgments Act. In fact, the all-important distinction between the declaratory judgment and the injunction is that the former does not invoke the managerial powers of the court that the injunction does; for that reason, it is not subject to the limiting principles that the injunction is. (Again, this is laid out in detail in The Myth of the Mild Declaratory Judgment.)²2. It is probably best to see the declaratory judgment as being a statutorily created form of legal prerogative writ, like mandamus or habeas. See Bray & Sherwin, Ames, Chafee, and Re on Remedies 1029 (4th ed. 2024); cf. Sir J. H. Baker, An Introduction to English Legal History 161 (5th ed. 2019).

The reason that injunctions do not issue against the President (again, assuming the point arguendo) is not that the President is above the law or outside of the law, but rather that the injunction is a remedy that draws on the court’s power to manage—with awesome minuteness and severity—the conduct of the defendant. That managerial power is lacking with the declaratory judgment. Indeed, if a defendant chooses to act inconsistently with a declaratory judgment, notwithstanding that it is a binding judgment with issue-preclusive effect, the defendant’s action is not itself a basis for contempt proceedings. The previously successful plaintiff may return to court and obtain an injunction, and then that remedy can be the basis for contempt (see 28 U.S.C. § 2202).

In short, the declaratory judgment is not an injunction, it is not an equitable remedy, and the reasons not to issue an equitable remedy against the President simply do not apply to the declaratory judgment.

Even so, that does not finally resolve whether a declaratory judgment may be granted against a President. Other legal remedies (or writs we would now call remedies), such as mandamus and habeas, may or may not be permissible against the President. But that is a separate question for each remedy that would have to take into account its distinctive guardrails (e.g., for mandamus, a ministerial duty). So the mere fact that a remedy is legal does not therefore mean it is available against a President; it merely means that it is not forbidden because of some equitable limitation. Yet if there are reasons particular to mandamus or habeas that make them forbidden against the President, those reasons would be unlikely to apply to the declaratory judgment. In other words, if any legal non-monetary remedy is available against the President, then it is almost certain the declaratory judgment would be.

That leaves one final argument against a declaratory judgment: namely, a rejection of any final judicial process running against the President. Something like that more extreme position would be required to exclude the declaratory judgment. My point here is that the declaratory judgment cannot be excluded on any grounds internal to the law of remedies. In particular, a declaratory judgment against the President cannot be excluded on the grounds that it is really an injunction and is therefore subject to historic limitations that apply to equitable remedies.

Five final notes.

First, this post has considered the availability of a declaratory judgment as a matter of remedial first principles, but the Supreme Court has previously affirmed a declaratory judgment against the President. In Clinton v. City of New York, the Court noted: “In both actions, the plaintiffs sought a declaratory judgment that the Line Item Veto Act is unconstitutional and that the particular cancellation was invalid; neither set of plaintiffs sought injunctive relief against the President.” 524 U.S. at 425 n.9.

Second, there is precedent for using declaratory judgments precisely in circumstances where courts are loathe for separation of powers reasons to issue an injunction: Powell v. McCormack. Indeed, Powell rejects the argument by the government defendants in Dellinger that the availability of a declaratory judgment depends on the availability of an injunction: “a request for declaratory relief may be considered independently of whether other forms of relief are appropriate.” 395 U.S. at 518.

Third, Presidents may want to seek declaratory judgments themselves. They have a constitutional duty to “take Care that the Laws be faithfully executed,” and one could imagine a President who took that duty seriously. Such a President might seek a declaratory judgment before proceeding with a high-stakes decision that was in the borderlands of legal authority. If the President may seek to obtain a declaratory judgment, symmetry requires a good reason for the President not to be subject to a declaratory judgment.

Fourth, in the United Kingdom declarations could be sought in proceedings against the sovereign in an official capacity and in a personal capacity (see The Rt. Hon. The Lord Woolf & Jeremy Woolf, The Declaratory Judgment § 6.18-19, at 271 & n.51 (3d ed. 2002)), though the availability of the declaration against the sovereign in an official capacity was changed by the Crown Proceedings Act 1947 (see id. at § 6.19, at 271). A fortiori.

Fifth, what is the effect of a declaratory judgment? Here’s what my remedies casebook with Emily Sherwin says:

A declaratory judgment is not a prediction of what a court might do. It is an actual judgment, a determination on the merits of the dispute between the parties. That judgment precludes relitigation of the issues actually decided by the court, and it lays the foundation for further actions for damages or injunctive relief, if necessary. As the Court said in Haaland v. Brackeen, 599 U.S. 255, 293 (2023): “[T]he point of a declaratory judgment is to establish a binding adjudication that enables the parties to enjoy the benefits of reliance and repose secured by res judicata. Without preclusive effect, a declaratory judgment is little more than an advisory opinion.”

Bray & Sherwin, Ames, Chafee, and Re on Remedies 1042 (4th ed. 2024).³3. The book goes on to quote from John Harrison, who notes that according to the very terms of the Declaratory Judgment Act, the judgment determines the legal relations of the parties. It is therefore not an end run around limits on universal relief. See John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56, 82 n.130 (2014).

The short-lived decision in Dellinger v. Bessent included a declaratory judgment against the President. Such a remedy should obviously not be granted lightly, but the district court was correct that equitable limitations do not prohibit a declaratory judgment against the President of the United States.

Samuel Bray is the John N. Matthews Professor of Law at the University of Notre Dame Law School. This post is cross-posted from the Divided Argument blog.