Columbia seek to an implied cause of action to enforce emolument clause against the president of the United States. The Municipal Court committed errors in dismissing the suit could i ask you to speak up just a little bit and bring the microphone closer if you can. And the plaintiffs are fundamentally mistaken in asserting that this court is powerless to correct any of those errors at this time. Now, we have identified two different paths through which this court can grant mandamus relieve. The Supreme Court in cheney made clear, its utmost when involving mandamus and the preds of the United States and in no case would a court be required to proceed against the president as it would against a private individual and moreover, the court said that the high respect due the office of the president must be considered throughout the entire proceeding. Now, what does that imply in this case . It implies the following. Their position is that even if the District Court erred in refusing to dismiss the suit. Indeed, even if it clearly and indisputably said theres error to dismiss the suit. Their position is that theyre powerless to do anything about it. That the president must go through Court Litigation and discovery into his personal finances, the official acts of his administration and only at the end of all of that can he take appeal from a final judgment which will promptly be dismissed. That. Counsel, can i ask you, i thought it was your burden to show you were clearly and indisputebly entitled to mandamus. I thought that was one of the requirement of mandamus relief. Is that correct. Thats correct, your honor. Its not saying that you havent met that, its saying you have to demonstrate to us that you have met that, right . Youre part right and part not right, your honor. Its true we have the burden. Clear and indisputable right. And their position is even if the District Court was clearly and indisputebly wrong. If every judge in the world would have agreed he should have dismissed the suit, their position is we still cannot get appellate relief. Youre skipping a step. You have to meet your burden first that the judge is asking you about. Im happy to do that. I just want to make clear that we have rnl i think that we have to talk about your burden because you would agree with me that mandamus is extraordinary relief. It is, your honor. And demonstrating that youre entitled to this extraordinary relief. Absolutely and what i wanted to say at the outset, we have two means of showing mandamus. Let me focus let me interject there. While youre doing that, why dont you distinguish, as you see it, this case from what the d. C. Circuit did in a similar setting, where they sent it back, as i understand it. Ments so, i dont actually ill answer both questions at the same time. Your honor, i dont think that theres a material distinction between what the d. C. Circuit did and what this court youre asking this court to do in the following sense. The d. C. Circuit said the District Court had clearly abused its discretion in refusing to grant 1292b certification. Without deciding whether it could grant mandamus on that basis, it remanded and told the District Court why dont you reconsider. In all due respect, i dont think thats a material distinction between ordering court to say you clearly erred and telling a lower court, youve clearly erred, why dont you reconsider it. Any reasonable the Supreme Court thought there seems to be a big difference in granting mandamus relief and doing that and thats, i think, the question is well taken, and thats why im sorry to persist in this. Maybe you can explain why you meet the three requirements for mandamus relief. On the first prong, theyre related. Reason why i dont think theres a difference is because when you tell a District Court theyve cleared abused their discretion and why dont you reconsider, a reasonable District Court will follow the courts instruction and grant the certification. And a totally you need more than a clear abuse a clear abuse of discretion is the first prong. Clear and inevitable the first disputable right is different than abuse of discretion. , but not a clear abuse of discretion, if you look at cheney, i can read you the quote. Youre still skipping the first step. The first step is that you have to demonstrate, is a clear and indisputable right. So what is that clear and indisputable right . You must think you have one. And i hear one. And what was the, if you could answer along with that. What was the court legally required to do that was not done in this case . I think our simplest explanation to all three questions ive gotten we think its clearly and indisputable you cannot sue the president of the United States without expressing a suit by congress. We think thats clear and indisputable, but the Supreme Court that has thric e. On that. I think thats your gloss on what the courts held, but we know from current litigations that several courts have allowed suits against the president to proceed. How can it be clear and indisputable. If all courts are flouting this, its the question in franklin was whether the president was subject to the administrative procedures act. The administrative procedures act covered agencies and defined agencies as any authority of the government of the United States and what the Supreme Court said is that that language didnt expressly include the president , but nor did it expressly exclude the president and there for reasoned in night of situation of powers and unique constitutional role of the president. Can i go back . You said theres a clear legal error and is it your view that mandamus if the court thinks theres a clear error . Thats on direct when were reviewing factual findings and i dont think that anyone thinks we should grant mandamus on the grounds. If theres a i know the quote youre talking about, but its a paragraph how its traditionally used only to ensure that a District Court has not usurped for some gross abuse of authority, usurped the power that it doesnt have, gone outside its jurisdiction. I think saying clear error is not really the equivalent to what were talking about here. Your honor, im happy to accept any formulation. We think that they equally apply when you have a suit thats against a president of the United States. Thats cast categorically closed and this is in the Association Case that if the lawsuit is filed in federal District Court that should have been before a federal agency, thats the sort of clear usurpation to use your phrase and mandamus. As i understand your position, you have a clear and indisputable right in this case because the judiciary is seeking to assert over the presidency of the United States authority that has never been asserted or claimed before. That is absolutely right, your honor, and the point i was trying to make about sual. If its a clear usurpation of a jurisdiction on an agency merely exercising the president s executive power, then surely its a clear usu usurpationo. You cited and it left open a suit against the president for a ministerial and there are other cases, clinton versus new york and the d. C. Circuit case against president nixon. If you can state whether the relief solved is ministerial or discretionary, i appreciate your position on that. I have two points on that. First to directly answer this, i dont think its ministerial within the meaning of the cases. In fact the argument that its making the precise error that the Supreme Court in mississippi versus johnson rejected. In mississippi versus johnson, tried to say that the president , it was ministerial because the president could not of course act inconstitutionally. And certain reconstruction acts were unconstitutional and of course you have to comply with the constitution and its a ministerial duty and the court said, no, no, thats not what it means. The question is whether theres any discretion and if theres a reasonable dispute whether this act is unconstitutional, its not ministerial, its executive. And the question whether it would be constitutional to allow a suit against the president. Theres an antecedent step. At a minimum congress should have to expressly authorize such a suit and congress should have to say that the president can be sued for ministerial acts. Thats the point of the clear statement requirement thats in frankl franklin. Its the point of the statement in nixon versus fitzgerald and the canon. And why would the court construe implied cause and equity for the first time in this nations history this court avoids constitutional questions and that could follow from basic principles of equity. Theyre relying on the traditional commonlaw equity power to join federal officials, well, there are two things about that. They cant assert such a history with respect to the president. Its always been lower federal officials, and second, we know from cases like grupo mexicano, that the scope of traditional remedies has to be formed by history. The point of grupo mexicano, your that has to be done by congress because of separation of power. If that thats true whether the prejudgment creditors or postjudgment creditors could file suit, surely it applies whether you could extend a cause of action for lower cause for the president of the United Statesments were treating this as if its some ordinary runofthemill case and it is not that. The judiciary is asserting injunctive power over the president of the United States and not only is it asserting that power, but its asserting it in an unprecedented way because you can understand the role of the judiciary in a case like United States versus knicnixo nixon, where the courts were aiding in the enforcement of a judicial subpoena in a criminal action and you can understand cases where the courts have stepped in to vindicate rights that have been infringed by government, but this is this is neither of those. Theres no direct the government is not acting directly against any individual and the government and youre not seeking were not confronted here with enforcement of a judicial subpoena in a criminal action. Whats being asked here is just wholly unprecedented, which is that we are to create a cause of action on our own under this emoluments clause. We have no history to guide us. We have no precedent to guide us, no right has been conferred or created by this clause, and no remedy has been spelled out. And in the face of all of those things, we are to proceed alone to tie down the presidency in litigation. That is excellent summary of our arguments, judge wilkinson, all i can say in addition is in theres no question there. Let me ask you could he answer my question. I didnt hear a question, judge, im sorry. If you heard a question, please answer it. I think what i would say is if all of that is not enough to warren mandamus relief, im hard pressed to see how this court could say in sewell in a jurisdiction is not warrant mandamus review. All the litany that judge wilkinson explained blows out of the water the case whats the answer to the question. Youre giving i understand what he said, you said you agree with him. Whats the answer to the question . This is exactly the sort of usurpation. Theres no enforcement of action emoluments clause know do this and not allow an interlo interlockry appeal and this is not just the president s situation of power, it goes to the question of is he above the law . And the allegations here are essentially discovery thats sought from third parties, primarily businesses, its really not a prerogative of the executive branch thats being sought here. In order to tie that in, youve got to tie him in so ultimately you say whatever the president does puts him above the law and out of the reach of being able to deal with issues that may be squarely there. Let me ask the more fundamental question because you started your argument out to the effect that they say you cant even be here before you even Start Talking about mandamus, you have to look to determine, well, is mandamus available in the instance where a District Court has given a denial of certification . And its clear that i dont know of another case thats done it in this fashion. If you want to talk about something thats never happened before, the 10 circuits that dealt with, nobody said a District Court can be taken over by the Appellate Court. The Appellate Court in this instance cannot usurp power and to do it, congress spoke and it really comes down to a congressional word shell. But let me finish. In the instance of the court, the District Court saying denial of certification in that particular instance, theres really no precedent for whats happening here today. Thats not true, your honor. Let me say thing there is one circuit. You would have to agree though where the weight of authority is against you on that point. That word is precedent. [laughter] let me finish, my word is precedent. Theres no word for this. The weight of the authority goes entirely the other way. Let me say a couple of things about the weight of authority. First, as the judge motz recognized theres one circuit that did exactly as weve said, 11th circuit in a case. They directed the Circuit Court to certify and their only distinction of that case is the District Court there hadnt yet ruled on the certification motion. Thats a the 11th circuit didnt let the District Court exercise its discretion, it thought it was so obvious that it would be granted it didnt gi the District Court to screw up which is what the District Court here did. Point two, it is both the d. C. Circuit in the parallel suit and the 5th circuit in the mcclellen case have done essentially the functional equivalent. They said that the District Court clearly abused discretion and remanded for the District Court to reconsider. Now, on this, i have a hard time understanding how any honest reasonable District Court judge in the face of that sort of order would do anything other than what judge sullivan in d. C. Did, which is promptly turn around and certify. The only difference between that and this is a judge who could care less that a panel of this court said he clearly abused discretion. Promptly tun around and certify and sent back to the District Court to do it. Yes. That wasnt done here . Your honor, i think the panel was absolutely right that it is pointless to remand it to the District Court, to give the District Court how do we know that . Because all that can happen, the District Court can thumb its nose of this court. So what . Do you have any case where a court of appeals has used mandamus as the vehicle to order a District Court to dismiss a case . So in the 11th circuit case no, no, im using mandamus to grant relief, to grant the substantive relief by ordering a District Court to dismiss a case . This courts decision . Sewell. The Court Decision in sewell was the case should have been dismissed because it should have been in the jurisdiction. Right. But no, im saying that the District Court in this case made went through all the hoops. It did everything it needed to do in order to consider the issue of certification. The case was properly before the District Court. It wasnt a question that it should have been in another forum. Our point, it should be in no forum. In sewell, the point was that the District Court erred in dismissing and putting the case into an executive agency and this court mandamus, no, case should go to agency. Our point is the suit shouldnt go anywhere. Right, but taking substantive action, in other words, this court youre saying this court can use the vehicle of mandamus to decide an issue in the case, essentially just because it disagrees with what the District Court did. No, your honor, i agree, as a lot of the questions, there has to be a clear and indisputable legal violation. How does the District Court usurp its authority. You still havent told us that. Again, for the same reason in sewell if a District Court takes jurisdiction over a case that belongs in front of an Administrative Agency this court and the Supreme Court court acknowledges a has there been a case, can we point to any case where the judiciary has asserted the power to enjoin the president of the United States in the exercise of his official duties . You can call it a ministerial, you can call it discretionary. What precedence is there for the courts to step in and exercise its duties and where is the limiting principle to that. The only case im aware of thats done such a thing and considering it and holding it at the appellate level is the 1976 case in the d. C. Circuit called ntau. The three times the Supreme Court has considered in issue of whether you can have a suit against the president for his official action. Three times it has come up and three times the