Certiorari granted by Supreme Court, January 25, 2021
`Remanded and vacated by Supreme Court, January 25, 2021
`
`ON REHEARING EN BANC
`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 18-2486
`
`
`
`
`
`
`In re: DONALD J. TRUMP, President of the United States of America, in his
`official capacity and in his individual capacity,
`
`
`Petitioner.
`
`------------------------------------------------------------
`
`PROFESSOR CLARK D. CUNNINGHAM; PROFESSOR JESSE EGBERT,
`
`
`
`SCHOLAR SETH BARRETT TILLMAN; JUDICIAL EDUCATION PROJECT,
`
`
`
`
`
`
`Amici Curiae,
`
`Amici Supporting Petitioner,
`
`FORMER NATIONAL SECURITY OFFICIALS; COMMONWEALTH OF
`VIRGINIA; THE NISKANEN CENTER; REPUBLICAN WOMEN FOR
`PROGRESS; CHERI JACOBUS; TOM COLEMAN; EMIL H. FRANKEL; JOEL
`SEARBY; ADMINISTRATIVE LAW, CONSTITUTIONAL LAW, AND
`FEDERAL COURTS SCHOLARS; CERTAIN LEGAL HISTORIANS,
`
`
`Amici Supporting Respondents.
`
`
`Appeal from the United States District Court for the District of Maryland, at Greenbelt.
`Peter J. Messitte, Senior District Judge. (8:17-cv-01596-PJM)
`
`
`
`
`Argued: December 12, 2019
`
`
`
`
`
`Decided: May 14, 2020
`
`
`

`

`Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE,
`KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON,
`QUATTLEBAUM, and RUSHING, Circuit Judges.
`
`
`Petition for writ of mandamus denied by published opinion. Judge Motz wrote the majority
`opinion, in which Chief Judge Gregory and Judges King, Keenan, Wynn, Diaz, Floyd,
`Thacker, and Harris joined. Judge Wynn wrote a concurring opinion, in which Judges
`Keenan, Floyd, and Thacker joined. Judge Wilkinson wrote a dissenting opinion, in which
`Judges Niemeyer, Agee, Richardson, Quattlebaum, and Rushing joined. Judge Niemeyer
`wrote a dissenting opinion, in which Judges Wilkinson, Agee, Quattlebaum, and Rushing
`joined.
`
`
`
`
`
`
`ARGUED: Hashim M. Mooppan, UNITED STATES DEPARTMENT OF JUSTICE,
`Washington, D.C., for Petitioner. Loren Linn AliKhan, OFFICE OF THE ATTORNEY
`GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Respondents.
`ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Mark R. Freeman, Michael S.
`Raab, Martin Totaro, Joshua Revesz, Megan Barbero, Civil Division, UNITED STATES
`DEPARTMENT OF JUSTICE, Washington, D.C., for Petitioner. Brian E. Frosh, Attorney
`General, Steven M. Sullivan, Solicitor General, Leah J. Tulin, Assistant Attorney General,
`OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; Karl
`A. Racine, Attorney General, Stephanie E. Litos, Assistant Deputy Attorney General,
`OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA,
`Washington, D.C.; Norman Eisen, Noah Bookbinder, Laura C. Beckerman, Stuart C.
`McPhail, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
`Washington, D.C.; Deepak Gupta, Joshua Matz, Daniel Townsend, GUPTA WESSLER
`PLLC, Washington, D.C.; Joseph M. Sellers, Christine E. Webber, COHEN MILSTEIN
`SELLERS & TOLL PLLC, Washington, D.C., for Respondents. Craig Thomas Merritt,
`CHRISTIAN & BARTON, L.L.P., Richmond, Virginia, for Amici Professor Clark D.
`Cunningham and Professor Jesse Egbert. Carrie Severino, JUDICIAL EDUCATION
`PROJECT, Washington, D.C., for Amicus Judicial Education Project. Robert W. Ray,
`THOMPSON & KNIGHT LLP, New York, New York; Josh Blackman, Houston, Texas,
`for Amicus Seth Barrett Tillman. Jan I. Berlage, GOHN HANKEY & BERLAGE LLP,
`Baltimore, Maryland, for Amici Judicial Education Project and Seth Barrett Tillman.
`Harold Hongju Koh, Rule of Law School, YALE LAW SCHOOL, New Haven,
`Connecticut; Phillip Spector, MESSING & SPECTOR LLP, Baltimore, Maryland, for
`Amici Former National Security Officials. Mark R. Herring, Attorney General, Toby J.
`Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy Solicitor General,
`Michelle S. Kallen, Deputy Solicitor General, Brittany M. Jones, OFFICE OF THE
`ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
`for Amicus
`Commonwealth of Virginia. Colin E. Wrabley, Devin M. Misour, Brian T. Phelps,
`Pittsburgh, Pennsylvania, M. Patrick Yingling, REED SMITH LLP, Chicago, Illinois, for
`
`
`
`2
`
`

`

`Amici The Niskanen Center, Republican Women for Progress, Cheri Jacobus, Tom
`Coleman, Emil H. Frankel, and Joel Searby. Regina Kline, Jean M. Zachariasiewicz,
`Anthony J. May, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Amici
`Administrative Law, Constitutional Law, and Federal Courts Scholars. H. Laddie
`Montague, Jr., Eric J. Cramer, Candace J. Enders, BERGER & MONTAGUE, P.C.,
`Philadelphia, Pennsylvania; Erica C. Lai, Melissa H. Maxman, COHEN & GRESSER
`LLP, Washington, D.C., for Amici Certain Legal Historians.
`
`
`
`
`
`3
`
`

`

`DIANA GRIBBON MOTZ, Circuit Judge:
`
`President Donald J. Trump, in his official capacity, petitions this court for a writ of
`
`mandamus directing the district court to certify an interlocutory appeal pursuant to
`
`28 U.S.C. § 1292(b) or, in the alternative, ordering the district court to dismiss the
`
`complaint against him. The President maintains that the district court committed multiple
`
`errors that we should correct; however, this case is not on appeal. We recognize that the
`
`President is no ordinary petitioner, and we accord him great deference as the head of the
`
`Executive branch. But Congress and the Supreme Court have severely limited our ability
`
`to grant the extraordinary relief the President seeks. Because the President has not
`
`established a right to a writ of mandamus, we deny his petition.
`
`
`
`I.
`
`The District of Columbia and the State of Maryland (“Respondents”) filed this
`
`action in the District of Maryland against the President in his official capacity.1 They allege
`
`that the President is violating the Foreign and Domestic Emoluments Clauses of the U.S.
`
`Constitution by accepting prohibited “emoluments” from foreign and domestic
`
`governments. The Foreign Emoluments Clause 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 Consent
`of the Congress, accept of any present, Emolument, Office, or Title, of any
`kind whatever, from any King, Prince, or foreign State.
`
`1 Respondents later amended their complaint to add the President in his individual
`capacity. The President noted an interlocutory appeal in that case, No. 18-2488, which we
`address in a companion opinion, also issued today. References to the President in this
`opinion refer to the President in his official capacity.
`4
`
`
`
`

`

`
`U.S. Const. art. I, § 9, cl. 8. The Domestic Emoluments Clause 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 receive within
`that Period any other Emolument from the United States, or any of them.
`
`
`Id. art. II, § 1, cl. 7.
`
`
`The President moved to dismiss the complaint. After considering the parties’
`
`extensive oral arguments and lengthy briefs, the district court issued two thorough
`
`opinions. See District of Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018); District
`
`of Columbia v. Trump, 291 F. Supp. 3d 725 (D. Md. 2018). The court granted the
`
`President’s motion to dismiss with respect to the operations of the Trump Organization
`
`outside the District of Columbia, concluding that Respondents lacked standing to pursue
`
`those claims. Trump, 291 F. Supp. 3d at 732. This narrowed the case to the President’s
`
`alleged violations relating to the Trump International Hotel in Washington, D.C. The
`
`district court denied the motion with respect to that hotel.
`
`The President moved for certification to take an interlocutory appeal pursuant to
`
`28 U.S.C. § 1292(b), seeking appellate review of four questions: (1) the correct
`
`interpretation of the term “emolument”; (2) whether Respondents had an equitable cause
`
`of action to bring the suit; (3) whether Respondents had Article III standing; and (4)
`
`whether any court has the ability to issue equitable relief against the President in these
`
`circumstances. The district court declined to certify an interlocutory appeal, explaining its
`
`decision in another written opinion. There, the court recognized the proper standard for
`
`certification under § 1292(b) and elaborated why, in its opinion, resolution of the questions
`
`
`
`5
`
`

`

`presented by the President did not satisfy the statutory prerequisites. See District of
`
`Columbia v. Trump, 344 F. Supp. 3d 828, 844 (D. Md. 2018).
`
`In response, the President petitioned this court for a writ of mandamus, invoking the
`
`All Writs Act, 28 U.S.C. § 1651(a), and Federal Rule of Appellate Procedure 21. He asks
`
`us either to direct the district court to certify an interlocutory appeal pursuant to 28 U.S.C.
`
`§ 1292(b) or to order the district court to dismiss the complaint with prejudice. A panel of
`
`this court granted the President’s petition for a writ of mandamus and, purportedly
`
`exercising jurisdiction pursuant to § 1292(b), found Respondents lacked standing and so
`
`“reverse[d] the district court’s orders” and “remand[ed] with instructions to dismiss the
`
`complaint with prejudice.” In re Trump, 928 F.3d 360, 364 (4th. Cir. 2019). We
`
`subsequently agreed to hear the case en banc, vacating the panel opinion. In re Trump, 780
`
`F. App’x 36 (4th Cir. 2019).
`
`
`
`II.
`
`A writ of mandamus is not a means to prevent “hardship occasioned by appeal being
`
`delayed until after final judgment.” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379,
`
`383 (1953) (internal quotation marks omitted). Rather, it is a “drastic” remedy that is
`
`appropriate “only in extraordinary situations,” such as where a court has exceeded the
`
`“lawful exercise of its prescribed jurisdiction” or refused “to exercise its authority when it
`
`is its duty to do so.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976) (internal quotation
`
`marks omitted). As the Supreme Court has explained, issuance of the writ without
`
`adherence to these strictures would erode the final judgment rule, a congressional
`6
`
`
`
`

`

`command since the Judiciary Act of 1789. Id. at 403; accord Allied Chem. Corp. v.
`
`Daiflon, Inc., 449 U.S. 33, 35 (1980).
`
`Accordingly, a petitioner seeking mandamus relief bears the burden of
`
`demonstrating that he has satisfied three requirements. Cheney v. U.S. Dist. Court, 542
`
`U.S. 367, 380 (2004). First, the petitioner must establish that there are no other adequate
`
`means of obtaining the relief sought. This criterion is “designed to ensure that the writ will
`
`not be used as a substitute for the regular appeals process.” Id. at 380–81. If there is an
`
`available “alternative, less extreme, path to [relief,] issuance of the writ is inappropriate.”
`
`Kerr, 426 U.S. at 396.
`
`Second, the petitioner must prove that his “right to issuance of the writ is clear and
`
`indisputable.” Cheney, 542 U.S. at 381 (internal quotation marks omitted). This criterion
`
`similarly ensures that the writ of mandamus is not “made to serve the purpose of an
`
`ordinary suit. It will issue only where the duty to be performed is ministerial and the
`
`obligation to act peremptory and plainly defined. The law must not only authorize the
`
`demanded action but require it; the duty must be clear and indisputable.” United States ex
`
`rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931).
`
`Third, even if the petitioner satisfies the first two criteria, “the issuing court, in the
`
`exercise of its discretion, must be satisfied that the writ is appropriate under the
`
`circumstances.” Cheney, 542 U.S. at 381. Thus, the decision to issue a writ of mandamus
`
`“is in large part a matter of discretion with the court to which the petition is addressed.”
`
`Kerr, 426 U.S. at 403.
`
`
`
`7
`
`

`

`Given the demanding criteria a petitioner must meet to obtain a writ of mandamus,
`
`appellate courts rarely grant mandamus relief, and even more rarely find it appropriate to
`
`issue a writ of mandamus to correct acts within the discretion of the district court. See,
`
`e.g., In re Ralston Purina Co., 726 F.2d 1002, 1005 (4th Cir. 1984) (“[W]hile writs of
`
`mandamus to review discretionary decisions of district judges are not proscribed, they
`
`should ‘hardly ever’ issue.” (quoting Allied Chem., 449 U.S. at 36)).
`
`Of course, when the petitioner is the President, “the Court of Appeals must also ask,
`
`as part of this [mandamus] inquiry, whether the District Court’s actions constituted an
`
`unwarranted impairment of another branch in the performance of its constitutional duties.”
`
`Cheney, 542 U.S. at 390. The special solicitude for a President seeking a writ of mandamus
`
`“give[s] recognition to the paramount necessity of protecting the Executive Branch from
`
`vexatious litigation that might distract it from the energetic performance of its
`
`constitutional duties.” Id. at 382.
`
`The President advances two courses that he maintains provide him entitlement to
`
`the extraordinary relief he seeks. We address each in turn and then consider the contention
`
`that, in any event, Cheney requires us to grant such relief.
`
`
`
`III.
`
`First and principally, the President contends that this court should issue a writ of
`
`mandamus ordering the district court to certify its orders for interlocutory appeal pursuant
`
`to 28 U.S.C. § 1292(b). That statute provides a vehicle for appeal of an interlocutory order
`
`
`
`8
`
`

`

`where the district court and the court of appeals have agreed that such an appeal is
`
`appropriate.
`
`Section 1292(b) mandates that a litigant who wishes to take such an interlocutory
`
`appeal first seek certification from the district court, and, only after the district court agrees,
`
`obtain permission from the court of appeals:
`
`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 termination of the litigation, he shall so state
`in writing in such order. The Court of Appeals which would have jurisdiction
`of an appeal of such action may thereupon, in its discretion, permit an appeal
`to be taken from such order . . . .
`
`28 U.S.C. § 1292(b) (emphases added). Thus, the plain language of the statute establishes
`
`that Congress vested the district court and the court of appeals each with discretion in
`
`making its respective decision.
`
`The legislative history of § 1292(b) confirms Congress’s clear intent to require both
`
`the district court and the court of appeals to agree to allow an interlocutory appeal and to
`
`provide both courts with discretion in deciding whether to do so. See, e.g., S. Rep. No.
`
`2434, 85th Cong., 2d Sess. 3 (1958) (“[T]he bill is cast in such a way that the appeal is
`
`discretionary rather than a matter of right. It is discretionary in the first instance with the
`
`district judge . . . .”); H.R. Rep. No. 1667, 85th Cong., 2d Sess. 3 (1958) (“The right of
`
`appeal given by the amendatory statute is limited both by the requirement of the certificate
`
`of the trial judge, who is familiar with the litigation and will not be disposed to countenance
`
`dilatory tactics, and by the resting of final discretion in the matter in the Court of
`
`
`
`9
`
`

`

`Appeals . . . .”).2 Relying on this language and history, courts have understood the matter
`
`of certification to be vested first in the discretion of the district court. See Swint v.
`
`Chambers Cty. Comm’n, 514 U.S. 35, 46 (1995) (“Congress . . . chose to confer on district
`
`courts first line discretion to allow interlocutory appeals.”). The Supreme Court has long
`
`recognized that Congress carefully chose this bifurcated process to preserve the integrity
`
`of the final judgment rule. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 474
`
`(1978), superseded by rule on other grounds as stated in Microsoft Corp. v. Baker, 137
`
`S. Ct. 1702 (2017).
`
`It is hardly surprising that appellate courts, generally reluctant to issue a writ of
`
`mandamus to correct a decision within the discretion of the lower court, have been
`
`particularly wary of usurping the discretion Congress specifically vested in the district
`
`courts under § 1292(b). See, e.g., In re Ford Motor Co., 344 F.3d 648, 654 (7th Cir. 2003)
`
`(collecting cases); Arthur Young & Co. v. U.S. Dist. Court, 549 F.2d 686, 697–98 (9th Cir.
`
`1977); In re Mar. Serv. Corp., 515 F.2d 91, 92–93 (1st Cir. 1975); see also In re Trump,
`
`781 F. App’x 1, 2 (D.C. Cir. 2019). But cf. Fernandez-Roque v. Smith, 671 F.2d 426, 431–
`
`
`2 Only in 1958, after years of extensive deliberation, multiple proposals, and
`
`“considerable study” by the Judicial Conference of the United States, S. Rep. No. 85-2434
`at 2, did Congress enact § 1292(b). See Pub. L. 85-919, 72 Stat. 1770 (1958). One proposal
`would have permitted an interlocutory appeal upon direct application to the courts of
`appeals when “necessary or desirable to avoid substantial injustice.” Judicial Conference
`of the United States, Report of the Proceedings of a Special Session 203 (Mar. 20–21,
`1952), quoted in Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C.
`§ 1292(b), 88 Harv. L. Rev. 607, 610 (1975). The Judicial Conference rejected that
`proposal, concluding that it would too liberally permit interlocutory appeals. See Appeals
`from Interlocutory Orders and Confinement in Jail-Type Institutions: Hearings on H.R.
`6238 and H.R. 7260 Before Subcomm. No. 3 of the H. Comm. on the Judiciary, 85th Cong.,
`2d Sess. 9 (1958).
`
`
`
`10
`
`

`

`32 (11th Cir. 1982). Appellate courts’ aversion to issuing a writ of mandamus to direct
`
`certification is for good reason. It is always difficult to establish a “clear and indisputable”
`
`right to a decision that lies within a court’s discretion, but it is particularly problematic
`
`when doing so circumvents the specific process Congress has prescribed for seeking
`
`interlocutory review.
`
`The President concedes that a “district court has broad discretion in considering”
`
`whether the § 1292(b) certification criteria have been met. Pet. at 11; see also id. at 2
`
`(“wide discretion”), id. at 12 (“significant discretion”). Nonetheless, he maintains that in
`
`this case the district court’s asserted legal errors amounted to a “clear abuse of discretion”
`
`requiring us to issue a writ of mandamus directing the district court to certify an
`
`interlocutory appeal. Id. at 11. At oral argument, the President’s counsel suggested that
`
`this asserted “clear abuse of discretion” provides a substitute for the “clear and
`
`indisputable” right to relief necessary to obtain a writ of mandamus. Oral Arg. at 6:07–
`
`6:15, 8:32–8:53. Thus, the President’s argument that we must issue a writ of mandamus
`
`ordering the district court to certify an appeal rests entirely on his contention that the
`
`magnitude of the district court’s asserted error transforms the mandamus requirement that
`
`a petitioner establish a “clear and indisputable” right to relief into a requirement that the
`
`petitioner show a legal error amounting to a “clear abuse of discretion.” The second dissent
`
`echoes this argument, maintaining that the district court’s refusal to certify was assertedly
`
`not “guided by sound legal principles” and for this reason amounted to a “clear abuse of
`
`discretion.” Second dissent at 83 (internal quotation marks omitted); see also id.
`
`
`
`11
`
`

`

`(suggesting that the district court’s opinion was “unmoored from the governing legal
`
`principles”).
`
`But the contention that a naked error of law amounts to an abuse of discretion
`
`entitling a petitioner to mandamus relief has been repeatedly rejected by the Supreme
`
`Court. More than fifty years ago, after noting it was “unnecessary to reach” the question
`
`of whether the district court had erred, the Court counseled appellate courts to be wary of
`
`issuing writs of mandamus:
`
`Courts faced with petitions for the peremptory writs must be careful lest they
`suffer themselves to be misled by labels such as “abuse of discretion” and
`‘want of power’ into interlocutory review of nonappealable orders on the
`mere ground that they may be erroneous.
`
`Will v. United States, 389 U.S. 90, 95, 98 n.6 (1967).
`
`The Supreme Court has never wavered from the view that, while “a simple showing
`
`of error may suffice to obtain a reversal on direct appeal,” it does not permit an appellate
`
`court to issue a writ of mandamus. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661 (1978);
`
`accord Bankers Life, 346 U.S. at 382.3 To hold otherwise “would undermine the settled
`
`limitations upon the power of an appellate court to review interlocutory orders.” Allied
`
`
`3 Nor, contrary to the President’s suggestion, does Cheney set forth a new, more
`
`lenient “clear abuse of discretion” standard for obtaining mandamus relief. In Cheney, the
`Court noted that a petitioner seeking a writ of mandamus must demonstrate “exceptional
`circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.”
`542 U.S. at 380 (internal quotation marks and citations omitted). And immediately
`following this statement, the Cheney Court explicitly declared that the long-established
`“three conditions must be satisfied before [a writ of mandamus] may issue,” id. (emphasis
`added), including “the burden of showing that [his] right to issuance of the writ is clear and
`indisputable,” id. at 381 (internal quotation marks omitted). The Court thus made clear
`that it did not establish a new standard or relax the three conditions necessary for a writ of
`mandamus to issue.
`
`
`
`12
`
`

`

`Chem., 449 U.S. at 35 (internal quotation marks omitted). Thus, the allegation of legal
`
`error in the district court’s thorough certification analysis — an issue on which we do not
`
`pass — provides no basis for us to compel certification under § 1292(b).
`
`The second dissent seeks to bolster its legal error/abuse of discretion argument by
`
`claiming that the district court not only erred, but also improperly “attempt[ed] to insulate
`
`itself from appellate review.” Second dissent at 76. The dissent admits that “each
`
`individual decision of the district court in this case purportedly fell within its jurisdictional
`
`purview.” Id. at 77. But the dissent nonetheless maintains that, “viewed holistically,” the
`
`district court’s decisions “evince a purposeful intent by the court to insulate its rulings from
`
`appellate review.” Id. But, no matter how “holistically” the district court’s opinions are
`
`viewed, actual evidence of the court’s “purposeful intent” to “insulate” its rulings from
`
`appellate review is nowhere to be found.4 Rather, the record reflects that the district court
`
`adjudicated the motion before it in accordance with the dictates of § 1292(b). The dissent
`
`does not deny this. Instead, relying solely on its unsubstantiated viewpoint, the dissent
`
`simply assumes that all courts must believe that the certification criteria were satisfied.
`
`
`4 The weakness of the dissent’s “insulation” argument is manifest in its heavy
`reliance on artful quotation of Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943). See
`second dissent at 75, 77, 79, 80, 87. The Roche Court did not use “thwart[ing] appellate
`review” to describe a district court following a prescribed statutory procedure. The only
`example the Court gave of conduct “thwart[ing]” review was a district court that avoids
`ruling at all on the challenged issue, a scenario not present here. Roche, 319 U.S. at 26.
`Moreover, the Court reiterated its consistent view, one the dissent would have us ignore,
`that “[w]here the appeal statutes establish the conditions of appellate review an appellate
`court cannot rightly exercise its discretion to issue a writ whose only effect would be to
`avoid those conditions and thwart the Congressional policy against piecemeal
`appeals . . . .” Id. at 30. The dissent’s partial quotations hence distort Roche’s holding
`beyond recognition.
`
`
`
`13
`
`

`

`The dissent’s “insulation” argument thus boils down to disagreement as to whether the
`
`§ 1292(b) criteria have been met. Mere disagreement with the district court, the body that
`
`Congress vested with the initial discretion to make that determination, does not constitute
`
`evidence that the decision was based on “whim” or that the district court usurped judicial
`
`power.
`
`We do not foreclose the possibility that in an appropriate case a writ of mandamus
`
`may issue to order a district court to certify an interlocutory appeal under § 1292(b). If the
`
`district court ignored a request for certification, denied such a request based on nothing
`
`more than caprice, or made its decision in manifest bad faith, issuing the writ might well
`
`be appropriate. See Ex parte Secombe, 60 U.S. (19 How.) 9, 13–15 (1856) (explaining that
`
`a writ of mandamus is not appropriate to correct an erroneous decision within the
`
`jurisdiction of the lower court unless the exercise of discretion is used in an “arbitrary and
`
`despotic” way or the court issues a decision “from passion, prejudice, or personal
`
`hostility”); see also Ex parte Bradley, 74 U.S. (7 Wall.) 364, 376–77 (1868) (instructing
`
`that a writ of mandamus should not issue to control a decision within the judicial discretion
`
`of the lower court unless the challenged act exceeds the court’s jurisdiction or the court,
`
`motivated by “caprice, prejudice, or passion,” exercises its discretion “with manifest
`
`injustice”). But here the district court promptly recognized and ruled on the request for
`
`certification in a detailed written opinion that applied the correct legal standards. The
`
`court’s action was not arbitrary or based on passion or prejudice; to the contrary, it “was in
`
`its nature a judicial act.” Ex parte Secombe, 60 U.S. at 15. Notably, notwithstanding the
`
`
`
`14
`
`

`

`President’s vigorous assertion that the court erred in its legal analysis, he does not contend
`
`that the district court denied certification for nonlegal reasons or in bad faith.
`
`Accordingly, the President has not shown that he is entitled to a writ of mandamus
`
`compelling the district court to certify its orders for interlocutory review under § 1292(b).5
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`IV.
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`We turn to the President’s secondary argument. See Pet. at 28–30. The President
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`maintains that, even if we “conclude that the district court’s certification discretion under
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`§ 1292(b) was sufficiently broad that a writ of mandamus directing certification is
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`unwarranted,” we “nevertheless should grant mandamus directing the district court to
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`dismiss [Respondents’] complaint.” Id. at 28. To obtain this relief, the President must
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`establish that it is not merely likely, but “clear and indisputable,” that the entire action
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`cannot lie. He has not done so.
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`We recognize that Respondents press novel legal claims. But reasonable jurists can
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`disagree in good faith on the merits of these claims. For example, the President contends
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`that the absence of congressional authorization forecloses the availability of judicial
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`review, relying on Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527
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`U.S. 308 (1999). Respondents counter that courts routinely recognize causes of action to
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`enjoin conduct that violates the Constitution. See, e.g., Bond v. United States, 564 U.S.
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`211 (2011); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010).
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`5 The President has not offered any independent argument that he meets the other
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`two criteria for mandamus relief. See Pet. at 11.
`15
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`The President responds that such equitable causes of action are available only as
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`preemptive defenses to enforcement actions. Although that argument is plausible, the cited
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`cases are not obviously limited in this way, and so the President does not have a clear and
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`indisputable right to dismissal of the complaint on this ground. Accord In re Trump, 781
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`F. App’x 1, 2 (D.C. Cir. 2019) (“The question of whether the Foreign Emoluments Clause
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`or other authority gives rise to a cause of action against the President is unsettled . . . .”
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`(citation omitted)).
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`The President’s assertion that the Respondents lack any cognizable injury also
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`presents a debatable question. Respondents do seek to extend established precedent to a
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`novel context. But their argument rests on legal principles that the Supreme Court has
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`expressly endorsed. See, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
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`U.S. 118 (2014) (competitor standing); Shelby County v. Holder, 570 U.S. 529, 544 (2013)
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`(states enjoy equal sovereignty in union); Massachusetts v. EPA, 549 U.S. 497, 518, 520
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`(2007) (states are entitled to special solicitude in the standing analysis); cf., e.g., Am.
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`Legion v. Am. Humanist Ass’n 139 S. Ct. 2067 (2019) (offended observer standing); Lynch
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`v. Donnelly, 465 U.S. 668 (1984) (same).
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`The President’s insistence that “emoluments” indisputably include only “profit
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`arising from office or employ” (that is, payment for services rendered in performance of a
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`formal job), while possible, is certainly not indisputable. Respondents assert that
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`emoluments include “all profits and other benefits [accepted from a foreign or domestic
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`government] that [the President] accepts through the businesses he owns.” Before this
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`litigation commenced, no court had ruled on this question, but Respondents point us to
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`several Executive Branch and Comptroller General legal opinions that have arguably
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`interpreted the term consistently with their definition, not the President’s. See Resp. Br. at
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`5–6. And multiple amici have submitted briefs in this and the companion case, No. 18-
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`2488, urging still different understandings of the term emolument. See, e.g., Brief of Amici
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`Curiae Professor Clark D. Cunningham and Professor Jesse Egbert on Behalf of Neither
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`Party, In re Trump (No. 18-2486), 2019 WL 366218; Brief for Amici Curiae Certain Legal
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`Historians in Support of Plaintiffs-Appellees and in Opposition to Petition for Writ of
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`Mandamus, In re Trump (No. 18-2486), 2019 WL 654726. Finally, within the Executive
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`Branch, officials have acknowledged there is considerable debate about this issue. See
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`Office of Inspector Gen., U.S. Gen. Servs. Admin., Evaluation of GSA’s Management and
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`Administration of the Old Post Office Building Lease 5 (2019) (finding that lawyers from
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`the General Services Administration “all agreed early on that [the President’s lease of the
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`D.C. Hotel] was a possible violation of the Constitution’s Emoluments Clauses”). Given
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`this history, we can hardly conclude that the President’s preferred definition of this obscure
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`word is clearly and indisputably the correct one.
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`In sum, while precedent offers guidance, it does not dictate a particular outcome on
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`the facts alleged in the President’s petition.6 When assessing whether to issue a writ of
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`6 The first dissent rejects this holding, proclaiming at length that of course the
`President is entitled to the extraordinary relief he seeks, and that our contrary view is
`improperly motivated. The dissent portrays us as “partisan warriors” acting with an
`“absence of restraint . . . incompatible with the dictates of the law.” First dissent at 29–30.
`But we remain confident that our narrow holding, reached with careful attention to the
`standard of review, is the essence of restraint. Readers may compare our measured
`approach with the dramatics of the dissent and draw their own conclusions.
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`mandamus, a court does not balance the respective merits of the parties’ arguments but
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`instead determines whether the petitioner has established a clear and indisputable right to
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`the writ.7 The President, the petitioner in this case, has not done so.
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`V.
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`Finally, we turn to the contention that separation of powers concerns require us to
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`issue a writ of mandamus.
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`A.
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`The President, relying on Cheney, argues that we must issue a writ of mandamus
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`because this suit, like that in Cheney, subjects the Executive Branch to “intrusive
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`discovery.” Pet. 29.
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`This is a puzzling argument given that, unlike the Vice President and the other
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`petitioners in Cheney, the President has not petitioned for relief as to any discovery order.
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`In any event, Cheney offers no assistance to the President here. The challenged discovery
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