concurring:
I concur in the judgment but write separately because there is a good deal in the majority opinion that is problematic and quite unnecessary to our decision.
I.
We must, of course, at the outset satisfy ourselves that we enjoy jurisdiction over appellant’s claim. That depends on his having standing, which, in turn, depends on our ability to redress his alleged injury. The government argues that to do so we would have to issue an injunction or a writ of mandamus or a declaratory judgment (all carrying essentially the same constitutionally troubling characteristics) directed to the President of the United States. I agree with the majority that after Franklin v. Massachusetts, 505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992), we must focus first on appellant’s requested relief. We are obliged to ask whether Swan’s injury can be redressed without an order that is directed either implicitly or explicitly against the President, and if not, are we authorized to issue the order against the President. One difficulty I have with the majority opinion is that it discusses the troublesome second question when the answer to the first makes our consideration of the second question gratuitous. As the Supreme Court said in *989Franklin, 505 U.S. at 803, 112 S.Ct. at 2777, “we need not decide whether injunctive relief against the President was appropriate because we conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary alone” (emphasis added). I think we could grant appellant all the relief he would ever need in this case, using only a little ingenuity, without ever attempting to impose judicial power directly on the President of the United States.
As the majority recognizes, by amending Swan’s complaint, as he wishes, to extend it to more federal officials (in this instance, without any threat of unfairness), see Maj. Op. at n.3, and relying on our authority under the All Writs Act to issue our remedial order to “persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice,” United States v. New York Tel. Co., 434 U.S. 159,174, 98 S.Ct. 364, 373, 54 L.Ed.2d 376 (1977), we can bring all the Board members, all the Board officials, and the Secretary of Treasury under our orders.1 Cf. Franklin, 505 U.S. at 828, 112 S.Ct. at 2789-90 (Scalia, J., concurring in part and concurring in the judgment) (“Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive.”). We could thus compel all officials at the Board to treat Swan as the rightful incumbent and, consequently, to ignore Wheat, at least officially. Moreover, the Secretary of Treasury could be directed to pay Swan’s salary and not to pay Wheat a nickel in federal funds. If that hypothetical order would not give Swan complete relief, I would be very surprised indeed.
The majority nevertheless justifies discussing, at length (an exercise iñ judicial chest thumping?), our authority to direct the President, because the President might instruct the Secretary of Treasury not to obey our order or might somehow issue other instructions to executive branch officials to frustrate our mandate (which is the only possible meaning to the phrase “were he to insist that Wheat and not Swan occupy the position of NCUA Board member....” Maj. Op. at 980). But that is simply another way of saying the President can always create a constitutional crisis of major proportions by directing subordinate executive branch officials to ignore the federal judiciary., One can only wonder, if any President would be willing to go that far — to encourage bald disobedience of judicial orders — what an order directed to the President himself would accomplish. At that point, we would be headed, in accordance with our temperament, either to the basement or the barricades. To give credence to that prospect is a good deal different than Justice Scalia’s legitimate protest against the unseemly judicial arrogance involved in assuming that a President would voluntarily conform his behavior to a judicial decision when he is under no legal obligation to do so. See Franklin, 505 U.S. at 825, 112 S.Ct. at 2788 (Scalia, J., concurring in part and concurring in the judgment).
It may well be, as the majority would strongly suggest, Maj. Op. at 977-78, that a federal court may order the President to reverse an action or desist from action we determine is illegal, but the issue seems more complicated to me, than it is put. The Supreme Court in the venerable case of Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 18 L.Ed. 437 (1866), declined to decide whether the President of the United States could be ordered to perform a purely ministerial act, but held that even if that were so, he could not be directed to perform or enjoined from performing duties that are purely “executive and political.” Id. at 499. We have in previous cases, as the majority describes, on occasion said but never really held that a President could be ordered to perform a ministerial act. See National Wildlife Fed’n v. United States, 626 F.2d 917, 923 (D.C.Cir.1980); National Treasury Employees Union v. Nixon, 492 F.2d 587, 616 (D.C.Cir.1974). Particularly after Franklin’s admonition that the “grant of in-junctive relief against the President himself *990is extraordinary and should ... raise[ ] judicial eyebrows,” Franklin, 505 U.S. at 802, 112 S.Ct. at 2776, I do not think that dicta is worth very much, nor am I convinced that the ministeriaVdiseretionary dichotomy which the majority would embrace is equivalent to the distinction drawn by the Supreme Court in Mississippi v. Johnson between ministerial on the one hand and “executive and political” on the other. The problem with the majority's formulation is that any time it is contended that the President has acted or intends to act illegally, it might be said that the President could not possibly enjoy such “discretion,” therefore employing its ministerial/discretionary distinction leads inexorably to the proposition that a court can order the President to not violate or to cease violating a law. But, as the Court implicitly recognized in Johnson, whether such an order is phrased as an injunction— ordering the President not to take an allegedly illegal act — or positively — to perform a legally obliged duty — it trenches on the President’s “executive and political” duties. That is why Justice Scalia’s formulation that a President himself cannot be directed personally to perform or not perform official duties may be a more appropriate formulation. See Franklin, 505 U.S. at 826-27, 112 S.Ct. at 2788-89 (Scalia, J., concurring in part and concurring in the judgment).
In sum, the majority’s implicit conclusion that a President may be directed to do, or not to do, anything that any executive branch official can be directed to do by way of mandamus, see Maj. Op. at 976-78, ie., a nondiscretionary act, which includes complying with the law is a rather far-reaching and perhaps dubious statement of constitutional law. I am uncertain as to its soundness, but I am quite sure there is no need to advance it in this case.
II.
I am similarly of the view that the majority’s treatment of the merits is unnecessarily labored — and plows jurisprudential fields that should remain undisturbed. We have never held, and need not do so in this case, that an appointee to a multi-member regulatory agency with a term appointment enjoys tenure equivalent to the term appointee who, according to the explicit terms of the statute, may not be removed except for good cause. It is certainly a logical assumption and we have assumed it before, see, e.g., Federal Election Comm’n v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C.Cir.1993), cert. dismissed, 513 U.S. 88, 115 S.Ct. 537, 130 L.Ed!2d 439 (1994), and I think we should assume it again here. But that assumption is predicated on the nature of a term appointment. Its most obvious purpose is to provide the incumbent with some measure of tenure or security against arbitrary removal.2 Therein lies the difficulty in appellant’s argument; after the term expires, the reason for the assumption expires as well. Unless, then, Congress indicates in the legislation itself that it intends some measure of job protection during the holdover period, which in this sort of situation — where Congress did not explicitly provide a good cause limitation on removal during the actual term — is virtually inconceivable, there is no reason at all to infer a congressional purpose to limit the President’s removal power during the holdover period. Therefore, I think the majority’s extended exposition on the function of the Board, the “need” vel non, as the majority sees it, for independence, the extensive discussion of legislative history, and the emphasis on the lack of a term limit in the NCUA holdover clause (which it seems to me would serve an entirely different purpose than the principal term limit) to be unnecessary to decide this case.
I agree that if Congress did try to limit a President’s power to remove a member of a multi-member agency during a holdover period, it would raise serious constitutional problems. See Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). But in this case, with the text of this holdover *991clause, I do not think there is any reason to worry about that hypothetical. There is not the slightest indication that Congress intended any limitation on the President’s authority to remove a Board member after his or her term has expired.
. We might be a good deal less willing to use this authority if it were not for our natural reluctance to avoid serious constitutional questions.
. But see Parsons v. United States, 167 U.S. 324, 17 S.Ct 880, 42 L.Ed. 185 (1897) (holding that a four year term of appointment for United States Attorneys did not restrict the President's power to remove during that time). U.S. Attorneys are of course engaged, unlike most members of independent, or relatively independent regulatory boards or commissions, in a core executive function.