No.
`In the Supreme Court of the United States
`
`
`
`IN RE DONALD J. TRUMP
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
` JEFFREY B. WALL
`Acting Solicitor General
`Counsel of Record
`JEFFREY BOSSERT CLARK
`Acting Assistant Attorney
`General
`HASHIM M. MOOPPAN
`Counselor to the Solicitor
`General
`MORGAN L. RATNER
`BRINTON LUCAS
`Assistants to the Solicitor
`General
`MARK R. FREEMAN
`MICHAEL S. RAAB
`DANIEL WINIK
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`

`

`QUESTIONS PRESENTED
`The Foreign Emoluments Clause provides that no
`person holding an “Office of Profit or Trust” under the
`United States “shall, without the Consent of the Con-
`gress, accept of any present, Emolument, Office, or Ti-
`tle, of any kind whatever, from any King, Prince, or for-
`eign State.” U.S. Const. Art. I, § 9, Cl. 8. The Domestic
`Emoluments Clause provides that, apart from the Pres-
`ident’s compensation for the period for which he is
`elected, he “shall not receive within that Period any
`other Emolument from the United States, or any of
`them.” U.S. Const. Art. II, § 1, Cl. 7. In this case, the
`District of Columbia and the State of Maryland sued
`President Donald J. Trump, in his official capacity, as-
`serting an implied cause of action to enforce the Emol-
`uments Clauses. The district court denied a motion to
`dismiss and refused to certify an interlocutory appeal
`under 28 U.S.C. 1292(b). A panel of the court of appeals
`granted the President’s petition for a writ of manda-
`mus, but the en banc court of appeals, by a 9-6 vote, held
`that mandamus was not available here. The questions
`presented are:
`1. Whether a writ of mandamus is appropriate be-
`cause, contrary to the holding of the court of appeals,
`the district court’s denial of the President’s motion to
`dismiss was clear and indisputable legal error.
`2. Whether a writ of mandamus is appropriate, con-
`trary to the holding of the court of appeals, where the
`district court’s refusal to grant the President’s motion
`to certify an interlocutory appeal was a clear abuse of
`discretion under 28 U.S.C. 1292(b).
`
`
`
`
`(I)
`
`

`

`PARTIES TO THE PROCEEDING
`Petitioner Donald J. Trump, in his official capacity
`as President of the United States, was defendant in the
`district court and petitioner in the court of appeals.
`Donald J. Trump, in his individual capacity, was also de-
`fendant in the district court; although he was not a
`party to this mandamus petition in the court of appeals,
`he was appellant in a separate appeal.
`Respondents, the District of Columbia and the State
`of Maryland, were plaintiffs in the district court and re-
`spondents to this mandamus petition in the court of ap-
`peals (and appellees in the separate appeal).
`
`
`RELATED PROCEEDINGS
`United States District Court (D. Md.):
`The District of Columbia & the State of Maryland v.
`Donald J. Trump, No. 17-cv-1596 (Mar. 28, 2018)
`(denying in part motion to dismiss)
`The District of Columbia & the State of Maryland v.
`Donald J. Trump, No. 17-cv-1596 (July 25, 2018)
`(denying in part motion to dismiss)
`The District of Columbia & the State of Maryland v.
`Donald J. Trump, No. 17-cv-1596 (Nov. 2, 2018)
`(denying interlocutory certification)
`United States Court of Appeals (4th Cir.):
`In re Donald J. Trump, No. 18-2486 (July 10, 2019)
`(panel decision)
`In re Donald J. Trump, No. 18-2486 (May 14, 2020)
`(decision on rehearing en banc)
`
`(II)
`
`

`

`III
`
`District of Columbia; State of Maryland v. Donald J.
`Trump, No. 18-2488 (July 10, 2019) (panel deci-
`sion)
`District of Columbia; State of Maryland v. Donald J.
`Trump, No. 18-2488 (decision on rehearing en
`banc)
`
`
`
`
`
`

`

`TABLE OF CONTENTS
`
`Page
`Opinions below .............................................................................. 1
`Jurisdiction .................................................................................... 1
`Constitutional and statutory provisions involved ...................... 2
`Statement ...................................................................................... 3
`Reasons for granting the petition ............................................. 12
`A. Mandamus is appropriate to correct the district
`court’s clear and indisputable legal errors in
`declining to dismiss respondents’ suit ........................... 14
`B. Alternatively, mandamus is appropriate to correct
`the district court’s clear abuse of discretion in
`refusing to certify its orders for interlocutory
`appeal ................................................................................ 25
`Conclusion ................................................................................... 34
`Appendix A — Court of appeals opinion (May 14, 2020) ...... 1a
`Appendix B — Court of appeals opinion (July 10, 2019) .... 112a
`Appendix C — District court order (Nov. 2, 2018) ............ 150a
`Appendix D — District court memorandum opinion
` (Nov. 2, 2018) .......................................... 152a
`Appendix E — District court order (July 25, 2018) .......... 182a
`Appendix F — District court opinion (July 25, 2018) ....... 184a
`Appendix G — District court order (Mar. 28, 2018) ......... 250a
`Appendix H — District court opinion (Mar. 28, 2018) ...... 252a
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) .................. 27
`American Sch. of Magnetic Healing v. McAnnulty,
`187 U.S. 94 (1902) ............................................................... 17
`Armstrong v. Exceptional Child Ctr., Inc.,
`575 U.S. 320 (2015).............................................................. 16
`Bankers Life & Cas. Co. v. Holland,
`346 U.S. 379 (1953).............................................................. 30
`
`(V)
`
`

`

`VI
`
`Page
`
`Cases—Continued:
`Blumenthal v. Trump, 949 F.3d 14
`(D.C. Cir. 2020), petition for cert. pending,
`No. 20-5 (filed July 6, 2020) ................................... 11, 25, 33
`Bond v. United States, 564 U.S. 211 (2011) ........................ 18
`Cheney v. United States Dist. Court,
`542 U.S. 367 (2004)..................................................... passim
`Clinton v. Jones, 520 U.S. 681 (1997) .................................. 22
`CREW v. Trump:
`953 F.3d 178 (2d Cir. 2019) ................................. 11, 25, 28
`No. 18-474, 2020 WL 4745067
`(2d Cir. Aug. 17, 2020) ................................... 11, 27, 28
`District of Columbia v. Trump, 959 F.3d 126
`(4th Cir. 2020) ........................................................................ 4
`Douglas v. Independent Living Ctr. of S. Cal., Inc.,
`565 U.S. 606 (2012).............................................................. 17
`Fernandez-Roque v. Smith, 671 F.2d 426
`(11th Cir. 1982) .................................................................... 31
`Ford Motor Co., In re, 344 F.3d 648 (7th Cir. 2003) .......... 31
`Franklin v. Massachusetts, 505 U.S. 788 (1992) .......... 19, 22
`Free Enter. Fund v. Public Co. Accounting
`Oversight Bd., 561 U.S. 477 (2010) .............................. 17, 18
`Green v. Occidental Petroleum Corp.,
`541 F.2d 1335 (9th Cir. 1976) ............................................. 31
`Grupo Mexicano de Desarrollo, S. A. v. Alliance
`Bond Fund, Inc., 527 U.S. 308 (1999) ................... 13, 17, 19
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`136 S. Ct. 1923 (2016) ......................................................... 26
`Hollingsworth v. Perry, 558 U.S. 183 (2010) .......... 14, 15, 22
`Juliana v. United States, No. 15-1517,
`2018 WL 6303774 (D. Or. Nov. 21, 2018) .......................... 32
`Leasco Data Processing Equip. Corp. v. Maxwell,
`468 F.2d 1326 (2d Cir. 1972) .............................................. 31
`
`
`
`

`

`VII
`
`Page
`
`Cases—Continued:
`McLelland Eng’rs, Inc., In re, 742 F.2d 837
`(5th Cir. 1984) ...................................................................... 32
`Michigan Corr. Org. v. Michigan Dep’t of Corr.,
`774 F.3d 895 (6th Cir. 2014) ............................................... 17
`Mississippi v. Johnson, 71 U.S. (4 Wall.) 475
`(1867) .................................................................. 13, 19, 20, 21
`Newdow v. Roberts, 603 F.3d 1002 (2010),
`cert. denied, 563 U.S. 1001 (2011) ..................................... 19
`Pfizer, Inc. v. Lord, 522 F.2d 612 (8th Cir. 1975),
`cert. denied, 424 U.S. 950 (1976) ....................................... 31
`Public Citizen v. United States Dep’t of Justice,
`491 U.S. 440 (1989).............................................................. 21
`Schlesinger v. Reservists Comm. to Stop the War,
`418 U.S. 208 (1974).............................................................. 15
`Schlagenhauf v. Holder, 379 U.S. 104 (1964) ...................... 30
`Skelly Oil Co. v. Phillips Petroleum Co.,
`339 U.S. 667 (1950).............................................................. 19
`Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995) ..... 26
`Trump, In re, 781 Fed. Appx. 1 (D.C. Cir. 2019) ......... 32, 33
`Trump v. Mazars USA , LLP, 140 S. Ct. 2019
`(2020) ........................................................................ 21, 23, 24
`United States v. Richardson, 418 U.S. 166 (1974) ............. 15
`Valley Forge Christian Coll. v. Americans United
`for Separation of Church & State, Inc.,
`454 U.S. 464 (1982).............................................................. 27
`Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .............................. 17
`
`Constitution and statutes:
`U.S. Const.:
`Art. I:
`§ 6, Cl. 2 (Incompatibility Clause) ............................ 28
`§ 9, Cl. 8 ........................................................................ 2
`Foreign Emoluments Clause ..................... passim
`
`
`
`
`
`

`

`VIII
`
`Page
`Constitution and statutes—Continued:
`Art. II, § 1, Cl. 7 ................................................................. 2
`Domestic Emoluments Clause ........................ passim
`Art. III ..................................................................... passim
`§ 2 ............................................................................... 15
`Declaratory Judgment Act, 28 U.S.C. 2201 ........................ 19
`28 U.S.C. 2201(a) ............................................................. 19
`28 U.S.C. 1292(b) .......................................................... passim
`
`Miscellaneous:
`3 Jonathan Elliot, The Debates in the Several State
`Conventions on the Adoption of the Federal
`Constitution as Recommended by the General
`Convention at Philadelphia in 1787
`(2d ed. 1891) ......................................................................... 15
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`In the Supreme Court of the United States
`
` No.
`IN RE DONALD J. TRUMP
`
`
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALSAL
`FOR THE FOURTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`The Acting Solicitor General, on behalf of President
`Donald J. Trump, in his official capacity, respectfully
`petitions for a writ of certiorari to review the judgment
`of the United States Court of Appeals for the Fourth
`Circuit in this case.
`OPINIONS BELOW
`The opinion of the en banc court of appeals (App., in-
`fra, 1a-111a) is reported at 958 F.3d 274. The opinion of
`the court of appeals panel (App., infra, 112a-149a) is re-
`ported at 928 F.3d 360. The opinion of the district court
`denying a motion to certify an interlocutory appeal
`(App., infra, 152a-181a) is reported at 344 F. Supp. 3d
`828. The opinions of the district court denying a motion
`to dismiss (App., infra, 184a-249a, 252a-307a) are re-
`ported at 315 F. Supp. 3d 875 and 291 F. Supp. 3d 725.
`JURISDICTION
`The judgment of the en banc court of appeals was en-
`tered on May 14, 2020. The jurisdiction of this Court is
`invoked under 28 U.S.C. 1254(1) or, in the alternative,
`28 U.S.C. 1651.
`
`(1)
`
`

`

`2
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`The Foreign Emoluments Clause (U.S. Const. Art. I,
`§ 9, Cl. 8) provides:
` No Title of Nobility shall be granted by the
`United States: And no Person holding any Office of
`Profit or Trust under them, shall, without the Con-
`sent of the Congress, accept of any present, Emolu-
`ment, Office, or Title, of any kind whatever, from any
`King, Prince, or foreign State.
`The Domestic Emoluments Clause (U.S. Const. Art.
`II, § 1, Cl. 7) provides:
` The President shall, at stated Times, receive for
`his Services, a Compensation, which shall neither be
`encreased nor diminished during the Period for
`which he shall have been elected, and he shall not re-
`ceive within that Period any other Emolument from
`the United States, or any of them.
`28 U.S.C. 1292(b) provides:
`When a district judge, in making in a civil action an
`order not otherwise appealable under this section, shall
`be of the opinion that such order involves a controlling
`question of law as to which there is substantial ground
`for difference of opinion and that an immediate appeal
`from the order may materially advance the ultimate ter-
`mination of the litigation, he shall so state in writing in
`such order. The Court of Appeals which would have ju-
`risdiction of an appeal of such action may thereupon, in
`its discretion, permit an appeal to be taken from such
`order, if application is made to it within ten days after
`the entry of the order: Provided, however, That appli-
`
`
`
`

`

`3
`
`cation for an appeal hereunder shall not stay proceed-
`ings in the district court unless the district judge or the
`Court of Appeals or a judge thereof shall so order.
`STATEMENT
`The Constitution’s Foreign and Domestic Emolu-
`ments Clauses are structural provisions that prophylac-
`tically protect the Nation as a whole against the corrup-
`tion of official action. Yet respondents, the State of
`Maryland and the District of Columbia, have alleged at-
`tenuated and speculative economic harms as their basis
`to sue the President for asserted violations of the Emol-
`uments Clauses and to seek discovery into the Presi-
`dent’s personal finances and the communications and
`activities of various Executive Branch agencies. See
`App., infra, 2a-3a; D. Ct. Doc. 132, at 4 (Sept. 14, 2018).
`The district court denied the President’s motion to
`dismiss, App., infra, 184a-249a, 252a-307a, and refused
`to certify the orders for interlocutory appeal under
`28 U.S.C. 1292(b), App., infra, 152a-181a. The Presi-
`dent petitioned the court of appeals for a writ of man-
`damus directing the district court either to dismiss re-
`spondents’ complaint outright or at least to certify an
`interlocutory appeal under Section 1292(b). Id. at 116a.
`A panel of the court of appeals granted mandamus, di-
`rected that the orders be certified for interlocutory ap-
`peal to the panel, and then held that respondents lack
`Article III standing. Id. at 112a-149a. The en banc
`court of appeals, however, vacated the panel decision
`and denied the President’s mandamus petition. Id. at
`1a-111a.
`1. In 2017, respondents brought suit directly under
`the Constitution against the President of the United
`States, in his official capacity, for alleged violations of
`the Foreign and Domestic Emoluments Clauses. D. Ct.
`
`
`
`

`

`4
`
`Doc. 1 (June 12, 2017). As relevant here, respondents
`allege that, since taking office, the President has main-
`tained an ownership interest, through the Trump Or-
`ganization, in the Trump International Hotel in Wash-
`ington, D.C. App., infra, 255a. Respondents further al-
`lege that officials of a number of foreign and state gov-
`ernments have patronized the Hotel, and that “the
`President’s receipt of benefits from these sources vio-
`lates both the Foreign and Domestic Emoluments
`Clauses.” Id. at 258a. Respondents assert that they
`have suffered injuries to a proprietary interest in their
`own properties that compete with the Hotel; a parens
`patriae interest in protecting businesses within their
`jurisdictions that compete with the Hotel; and a quasi-
`sovereign interest in ensuring that all other jurisdic-
`tions are equally barred from providing regulatory ben-
`efits to the President’s businesses. Id. at 259a-261a.
`They seek a declaration that the President has violated
`the Emoluments Clauses and an injunction preventing
`the President from receiving prohibited Emoluments in
`the future. Id. at 253a; see D. Ct. Doc. 95, at 45-46 (Mar.
`12, 2018).1
`2. The President in his official capacity moved to dis-
`miss respondents’ complaint for lack of jurisdiction and
`for failure to state a claim on which relief could be
`
`
`1 After litigation commenced, respondents, at the district court’s
`urging, amended their complaint to include claims against the Pres-
`ident in his individual capacity, and then, again at the district court’s
`urging, attempted to voluntarily dismiss those claims. See D. Ct.
`Doc. 90-1, at 2 (Feb. 23, 2018); D. Ct. Doc. 95-1; D. Ct. Doc. 150 (Dec.
`17, 2018); D. Ct. Doc. 154 (Dec. 19, 2018). Those claims are the sub-
`ject of separate proceedings handled by the President’s personal
`lawyers, see District of Columbia v. Trump, 959 F.3d 126 (4th Cir.
`2020) (en banc), and are not directly at issue here.
`
`
`

`

`5
`
`granted. D. Ct. Doc. 21 (Sept. 29, 2017). The district
`court bifurcated its motion-to-dismiss decisions.
`In March 2018, the district court held that there was
`jurisdiction and a cause of action to bring this suit.
`App., infra, 252a-307a. It concluded that respondents
`had sufficiently alleged Article III injuries to at least
`some of their asserted proprietary, parens patriae, and
`quasi-sovereign interests, and that those injuries were
`fairly traceable to the asserted violation of the Emolu-
`ments Clauses. Id. at 269a-291a. The court also con-
`cluded that the injuries were redressable, as the court
`“s[aw] no barrier to its authority to grant either injunc-
`tive or declaratory relief ” against the President. Id. at
`296a. Finally, the court concluded that respondents fell
`within a zone of interests protected by the Emoluments
`Clauses because those Clauses “were and are meant to
`protect all Americans.” Id. at 301a. The court thus
`“s[aw] no problem in invoking its equitable jurisdiction
`here.” Id. at 302a.
`In July 2018, the district court held that the com-
`plaint adequately pleaded a claim upon which relief
`could be granted. App., infra, 184a-249a. The court
`concluded that the term “emolument” means “any
`‘profit,’ ‘gain,’ or ‘advantage,’ ” a definition that encom-
`passed the President’s alleged acceptance of certain
`benefits from his business interests. Id. at 186a.
`3. The President promptly moved to certify an inter-
`locutory appeal of both orders denying the motion to
`dismiss. D. Ct. Doc. 127 (Aug. 17, 2018). In November
`2018, the district court denied certification. App., infra,
`152a-181a. Although the court acknowledged that re-
`spondents’ suit was “novel[],” id. at 165a, it concluded
`that no substantial legal grounds exist for disagreeing
`with its refusal to dismiss, see id. at 163a-165a, 168a-
`
`
`
`

`

`6
`
`175a. The court also asserted that the “delay[]” occa-
`sioned by an interlocutory appeal to the Fourth Circuit
`and a possible request for review in this Court “cannot
`be countenanced.” Id. at 166a. In addition, the court
`denied the government’s request for a stay pending ap-
`peal, opining that discovery into the President’s fi-
`nances “would seem unlikely to impose any meaningful
`burden on the President.” Id. at 179a.
`4. The district court entered a discovery schedule
`contemplating six months of fact discovery, D. Ct. Doc.
`145 (Dec. 3, 2018), but the court of appeals subsequently
`stayed district-court proceedings pending resolution of
`the government’s mandamus petition, C.A. Doc. 9 (Dec.
`20, 2018). Before the stay, though, respondents had pro-
`pounded 38 third-party subpoenas. To date, respondents
`have served subpoenas on five federal agencies—the
`General Services Administration and the Departments
`of Agriculture, Commerce, Defense, and the Treasury—
`that demanded information about money expended by
`those agencies and their employees at the Trump Hotel,
`agency policies regarding patronage of the Hotel, the
`leasing of the Old Post Office Building in which the Ho-
`tel is located, and other government communications
`and decisions. See, e.g., Notice of Subpoena to General
`Servs. Admin., Attach. A, at 8 (Dec. 4, 2018) (demanding
`“all Communications with the President or White
`House Concerning the location of the headquarters of
`the Federal Bureau of Investigation”).
`In addition, respondents’ pre-discovery statement
`made clear that they might seek what they character-
`ized as “limited” discovery from the President in his of-
`ficial capacity. D. Ct. Doc. 132, at 4. The contemplated
`discovery included attempts to obtain the President’s
`
`
`
`

`

`7
`
`“communications with foreign, state, and domestic gov-
`ernment officials.” Ibid. Moreover, while respondents
`asserted that they “plan[ned] to pursue” that discovery
`first from third parties, even such third-party discovery
`would concern the President’s financial interests and
`would be on account of his office. Ibid.
`5. The President filed a petition for a writ of man-
`damus in the court of appeals, seeking either dismissal
`of respondents’ complaint or certification for appeal of
`the district court’s motion-to-dismiss denials. C.A. Doc.
`2-1 (Dec. 17, 2018). A panel of the court of appeals
`granted mandamus. App., infra, 112a-149a.
`The panel explained that this suit is “extraordinary”
`in several ways: It “is brought directly under the Con-
`stitution without a statutory cause of action”; “seeks an
`injunction directly against a sitting President”; involves
`the first attempt “ever” to enforce the Emoluments
`Clauses in court; raises “novel and difficult constitu-
`tional questions, for which there is no precedent”; in-
`volves plaintiffs who “have manifested substantial diffi-
`culty articulating how they are harmed by the Presi-
`dent’s alleged receipts of emoluments”; and seeks “in-
`trusion into the duties and affairs of a sitting Presi-
`dent.” App., infra, 124a-125a. Indeed, the panel added,
`“not only is this suit extraordinary, it also has national
`significance and is of special consequence.” Id. at 125a.
`Given those circumstances, the panel concluded that
`“this is a paradigmatic case for certification under
`§ 1292(b).” App., infra, 132a. The panel acknowledged
`that “disturbing an exercise of the broad discretion con-
`ferred on district courts to determine whether to certify
`orders for interlocutory appeal should be rare and occur
`only when a clear abuse of discretion is demonstrated.”
`Ibid. (emphasis omitted). But it determined that this
`
`
`
`

`

`8
`
`case met that stringent standard, as the district court
`had “erred so clearly in applying the § 1292(b) criteria.”
`Ibid. The panel accordingly granted a writ of manda-
`mus that directed the district court to certify its orders,
`and rather than remanding to “pointlessly go through
`the motions of certifying,” the panel took jurisdiction
`under Section 1292(b). Id. at 133a.
`The panel then concluded that the case should be dis-
`missed because respondents lack Article III standing.
`App., infra, 137a-148a. It explained that respondents’
`theory of “proprietary” injury—that foreign or state
`“government customers are patronizing the Hotel” ra-
`ther than respondents’ businesses “because the Hotel
`distributes profits or dividends to the President”—was
`purely speculative. Id. at 140a (emphasis omitted). And
`the panel reasoned that respondents’ “theory of parens
`patriae standing” likewise failed because it “hinge[d] on
`the same attenuated chain of inferences as does their
`theory of proprietary harm.” Id. at 144a. Finally, the
`panel rejected respondents’ theory of “injury to their
`quasi-sovereign interests,” which “amount[ed] to little
`more than a general interest in having the law fol-
`lowed.” Id. at 145a.
`6. The en banc court of appeals granted rehearing,
`vacated the panel decision, and, in a 9-6 decision, denied
`the President’s mandamus petition. App., infra, 1a-
`111a.
`a. The en banc majority first rejected the request
`for mandamus directing the district court to certify its
`decisions for interlocutory appeal under Section 1292(b).
`App., infra, 7a-14a. Although the majority suggested
`that it might grant such relief if the failure to certify
`were based on “caprice” or “manifest bad faith,” id. at
`13a, it reasoned that a district court’s “ ‘clear abuse of
`
`
`
`

`

`9
`
`discretion’ ” in applying the proper legal standard could
`not establish the “ ‘clear and indisputable’ right to relief
`necessary to obtain a writ of mandamus,” id. at 10a (ci-
`tation omitted). Therefore, because the district court
`had issued “a detailed written opinion that applied the
`correct legal standards” and “was not arbitrary or
`based on passion or prejudice,” the majority concluded
`that mandamus directing the district court to certify its
`orders for interlocutory appeal was unavailable. Id. at
`13a-14a. In so holding, though, the majority did not dis-
`pute the President’s claim that the orders reflected a
`clear abuse of discretion. See id. at 10a-14a.
`The majority also rejected the request for manda-
`mus directing the district court to dismiss respondents’
`complaint. App., infra, 14a-17a. The majority acknowl-
`edged that respondents “press novel legal claims” and
`“seek to extend established precedent to a novel con-
`text,” but decided that the President’s arguments for
`dismissal were still “debatable” and fell short of the
`clear-and-indisputable standard to correct legal errors
`via mandamus. Id. at 14a-15a.2
`b. Judge Wilkinson, joined by Judges Niemeyer,
`Agee, Richardson, Quattlebaum, and Rushing, dis-
`sented. App., infra, 26a-64a. Judge Wilkinson would
`have granted mandamus based on the conclusion that
`“[i]t is clear and indisputable that this action should
`never be in federal court.” Id. at 26a. He explained that
`respondents sued without any constitutional or statu-
`tory provision specifically authorizing a cause of action
`
`
`2 Judge Wynn, joined by Judges Keenan, Floyd, and Thacker,
`concurred to express the view that the majority was attempting to
`apply the law and was not motivated by partisan views. App., infra,
`22a-25a.
`
`
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`

`10
`
`and without any traditional basis in general equity ju-
`risdiction. Id. at 31a-39a. He further explained that,
`“as redress for their purported injuries,” respondents
`sought the “extraordinary” remedy of “an injunction
`issued directly against the President of the United
`States”—permanent relief that “the federal courts have
`never sustained.” Id. at 39a, 44a; see id. at 39a-51a. Fi-
`nally, he would have found that the Emoluments
`Clauses are not “amenable to judicial enforcement” ab-
`sent congressional authorization because “[t]hey are all
`structural prohibitions designed to ensure that federal
`officials avoid the appearance of or opportunity for con-
`flicts of interest.” Id. at 52a, 54a; see id. at 52a-59a.
`c. Judge Niemeyer, joined by Judges Wilkinson,
`Agee, Quattlebaum, and Rushing, also dissented. App.,
`infra, 65a-111a. Judge Niemeyer would have granted
`mandamus relief with respect to the district court’s fail-
`ure to certify its orders for interlocutory appeal. Id. at
`76a-92a. He explained that, in “this most marginal of
`lawsuits”—involving “paradigmatic orders for certifica-
`tion under § 1292(b)”—the failure to certify repre-
`sented “either a judicial usurpation of power or a clear
`abuse of judicial discretion.” Id. at 66a-67a, 77a. And
`once the district court was compelled to certify its or-
`ders, Judge Niemeyer would have exercised jurisdic-
`tion and concluded that respondents’ suit, which faced
`“numerous” threshold hurdles, id. at 94a, should have
`been dismissed for lack of Article III standing, id. at
`97a-110a. He observed that, “as our court is unwilling
`to step in to [dismiss the action], I can only hope and
`expect that the Supreme Court will do so under its well-
`established jurisprudence.” Id. at 67a-68a.
`
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`11
`
`7. On July 9, 2020, the en banc court of appeals, with
`only one judge dissenting, granted the President’s mo-
`tion for a stay of district-court proceedings pending this
`Court’s consideration of a petition for a writ of certio-
`rari and any further proceedings in this Court. C.A.
`Doc. 111.
`8. In addition to this case, two other suits have been
`brought against the President alleging violations of the
`Emoluments Clauses. Each of those is now separately
`before this Court.
`First, in Blumenthal v. Trump, 949 F.3d 14 (D.C.
`Cir. 2020) (per curiam), petition for cert. pending,
`No. 20-5 (filed July 6, 2020), individual Members of Con-
`gress sued to enforce the Foreign Emoluments Clause.
`Id. at 16. On interlocutory review under Section
`1292(b), the court of appeals held that the legislators
`lack Article III standing. Id. at 18-20. The legislators
`have filed a petition for a writ of certiorari, and the
`President’s brief in opposition is being filed contempo-
`raneously with this petition.
`Second, in CREW v. Trump, 953 F.3d 178 (2d Cir.
`2019), various plaintiffs in the hospitality industry sued
`under both Emoluments Clauses, relying on a theory of
`competitive harm similar to the one asserted here. Id.
`at 184-186. A divided panel of the court of appeals held
`that the plaintiffs had pleaded Article III standing, and
`remanded for the district court to decide several other
`remaining issues raised in the President’s motion to dis-
`miss. Id. at 189, 203. The en banc Second Circuit denied
`rehearing, over multiple dissents, CREW v. Trump, No.
`18-474, 2020 WL 4745067 (Aug. 17, 2020), and the Pres-
`ident is contemporaneously filing a petition for a writ of
`certiorari in that case.
`
`
`
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`12
`
`REASONS FOR GRANTING THE PETITION
`Respondents seek official-capacity relief against the
`President of the United States that has never been per-
`mitted by this Court. They do so to enforce constitu-
`tional provisions that have never previously been in-
`voked in any court. And they assert an implied cause of
`action pursuant to the equity jurisdiction of Article III
`courts that has never previously been recognized by any
`court. The district court fundamentally erred in per-
`mitting this unprecedented and extraordinary suit to
`proceed. And in light of the clear, foundational flaws
`with this suit, the court of appeals equally erred in as-
`serting that it was powerless to provide any relief to the
`President at this stage of the litigation. The en banc
`majority concluded that a writ of mandamus was una-
`vailable because (1) any legal errors by the district
`court in declining to dismiss the suit were insufficiently
`clear to support mandamus, and (2) even a clear abuse
`of discretion by the district court in refusing to certify
`an interlocutory appeal under 28 U.S.C. 1292(b) would
`not be a basis for mandamus. As the en banc dissents
`forcefully contended, both conclusions are incorrect and
`each warrants this Court’s review.
`First, mandamus is appropriate to compel the dis-
`missal of respondents’ complaint. Although this novel
`suit suffers from a host of threshold defects, two are
`particularly clear: Respondents cannot seek redress in
`an Article III court because they lack an implied cause
`of action in equity to directly enforce the structural,
`prophylactic requirements of the Emoluments Clauses,
`and at the very least, they cannot bring such a suit
`against the President in his official capacity. The court
`of appeals’ denial of mandamus in these circumstances
`
`
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`

`13
`
`contravenes this Court’s precedents, including its in-
`structions that equitable suits seeking “relief that has
`never been available before” must be authorized by
`Congress, Grupo Mexicano de Desarrollo, S. A. v. Alli-
`ance Bond Fund, Inc., 527 U.S. 308, 322 (1999), and that
`federal courts have “no jurisdiction of a bill to enjoin the
`President in the performance of his official duties,”
`Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501
`(1867). This Court’s review is especially critical because
`the fact that the President in his off