Maryland and the district of columbia seek against the president the district committed several fundamental errands the suit i accept you to bring the microsoft two and a closer to if you can the plaintiffs are fundamentally mistaken in asserting that this power the court is powerless to correct any of those areas at this time. We have identified there is one overarching point and that is this the Supreme Court and cheney made it clear that the separation of powers of utmost taken, are of utmost importance when considering petitions involving the president of the note states. For example, the Court Appointed chief Justice Marshall to say in no case with the court be required against a private individual. And the court said the high respect do the office of the president must be considered throughout the entire proceeding. What does that imply in this case . The following. Their position is that even if the District Court aired in defeating debts refusing to dismiss the suit, even if every judge agreed there was air, their position is that this court is still powerless to do anything about it, that the president must go through litigation and be subjected to discovery and personal finances and only at the end of all of that can he take an appeal from final judgment, which would probably be dismissed. Can i ask you i thought it was your burden to show that you were clearly and indisputably entitled to mandamus. I thought that was one of the three requirements of that. Is that not so . That is correct, your honor. So it is not they are saying you havent met that. It is you having demonstrate that you have met that. Right . You are part right and part not right. It is true we have the burden, clear and industry billable right. There distribute their position is that even if they were wrong, if every judge were to agree, their position is we still cant get a release. That but youre skipping a step. You have to meet your burden step that shes asking you about. Im happy to do that. They have, i think we have to talk about your burden because you would agree with me that mandamus is externally relief. It is, your honor. You are entitled to this, absolutely. What i wanted to say at the outset, we have two means of showing mandamus. Let me interject. Why dont you distinguish this case from what the d. C. Circuit judge d did in a similar setting . Where they sent it back. I will answer both at the same time. I dont think there is a material distinction between what the d. C. Circuit judge and what circuit did and what youre asking. They said they clearly abused its discretion. Without deciding whether it could grant mandamus, it told the District Court, why dont you just reconsider . I dont think that a material distinction between ordering the court you ever and errored, and telling the court, why dont you consider it . You seem to think theres a fault in considering mandamus relief. Thats why the question is well taken. Thats why, im sorry to persist, maybe you can explain why you meet the requirements for getting it. Again, the first prompt. Let me say one last thing. They are related. The reason i dont think theres a difference is because if you tell the District Court they have abused their discretion, only two things are going to happen. A reasonable District Court will follow the instruction and grant certification. A in transient District Court will thumb their nose. They need more to get mandamus release, you recognize that, dont you . Thats the first prong. Clear and, the first right is different than an abuse of discretion. An abuse of discretion, but not a clear abuse of discretion. I can review the quote. But youre still skipping the first step. The first step is that you have to demonstrate a clear and industry billable right. What is that clear and indisputable right. You must think you have one. I have two. Id like to hear one. If you can answer, what was the court legally required to do that it did not do . What did it have to do that was not done in this case . I think our simplest explanation to all those questions is we think it is clear and indisputable that you cannot sue the president of the United States in his official capacity without having an express statement authorizing such a suit by congress. We think that is clear and indisputable that the Supreme Court has thrice held exactly that. I think thats your glass on what the courts held, but we know from current litigation involving similar issues, several coats courts have allowed suits against the president to proceed. How can it be clear and indisputable . With all due respect, it is not change the fact the president is clear and indisputable. What they said in franklin was whether the president was subject to the procedures act. It said it covers agencies and it defined agency as any authority of the government of the United States. That language didnt especially include the president , but nor did it exclude the president. It reasoned in light of separation of powers and the unique role of the president , textual silence was not enough and you needed an explicit statement of congress before they could be express could i go back to the standard . You said there was a clear legal error. Is it your view mandamus should issue, since theres a clear error . Thats the standard we use on direct review. I dont think anyone thinks we should grant mandamus on that ground. Theres a threepronged test showing clear and clear abuse of discretion. Indisputable right. I think you take that out of context from cheney. I know the quote youre talking about, but its in a paragraph in talking about how this is a drastic remedy, traditionally used to ensure a District Court has not usurped, or gross abuse of authority, usurped the power it doesnt have, gone outside its jurisdiction. I think saying clear error is not the equivalent of what youre talking about. I would be happy to accept those formulations because we think those apply when you have a suit against the president that is categorically foreclosed by Supreme Court precedent. Let me point to this Court Advisory as president. Precedent. That is the sort of clear usurpation that warrants mandamus review. As i understand your position, you have a clear and indisputable right in this case are seeking to usurp over the president of the United States on authority that has never been asserted or claimed to before. That is absolutely right. The point i was trying to make is that if it is a clear usurp a station of a federal agency, an agency exercising the president s executive power, then surely it is a clear separation of jurisdiction to talk of the bed, himself. The president is the chief executive. He referred to franklin versus massachusetts and cited it, i think, accurately, but that left open a suit against the president for a ministerial act. And theres some other cases, clinton versus new york and the d. C. Circuit judge against president nixon. If you could address whether you think the relief being saw is ministerial or discretionary, i would appreciate your position. First, i dont think this is ministerial within the meaning of those cases. I think the argument it is is making the precise error the Supreme Court rejected in mississippi versus johnson, they said it was ministerial. The president could not act unconstitutionally. The challenge was the certain reconstruction acts were unconstitutional. Of course you have to comply. Its that ministerial duty. The Supreme Court said no. Thats not what ministerial means. The question was if there was any discretion. If there is a dispute, that is not ministerial. Its executive. The second point i would make about this, that question is about whether it would be constitutional to allow a suit against the president. Theres an antecedent step i think is important. At a minimum, before you have to decide that difficult question, at a minimum, congress should have to authorize such a suit. Congress should say the president can be sued for ministerial acts. Thats a point of the requirement in franklin, the point of the requirement in nixon versus per gerald, and also basic avoidance principles. Whether the court construe an implied action and equity for the first time to the to present constitutional question . This court avoids constitutional question. That follows basic questions of equity. Theyre relying on common law equity power to join federal officials. There are two things about that. They cant assert such a history with the president. Its always been lower officials second, the scope of the traditional remedies have to be informed by history. The whole point of the decision is that if youre trying to extend a traditional remedy, that has to be done by congress because of separation of powers. If thats true in group a mexican honor, where it was over creditors to file suit, surely it applies to whether you can extend a cause of action for lower federal officials to the president of the United States. Were treating this as if its some runofthemill case. And it is not that. The jews theory is asserted the gst sherry the judiciary is asserting power over the United States, in an unprecedented way. Because you can understand the role of the judiciary in a case like United States versus nixon, where the courts were aiding in the enforcement in 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 neither of those. There is no direct the government is not acting directly against any individual. And youre not seeking were not confronted here with enforcement of a judicial subpoena in a criminal action. Whats being asked her eis ju here is just holy unprecedented, that we are asked to create an action on our own. We have no history to guide us. We have no precedent to guide us. 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 an excellent summary of our arguments. All i can say in addition, there snowquester there. There is no question there. Can he answer my question . If you heard a question, please answer it. I think i would say is, if all of that is not worth mandamus, im hardpressed to understand how this court can say, merely trenching on executive agencys jurisdiction is enough to warrant mandamus review. All the litany blows out of the water the case an answer to the question. Understand what he said, youre saying you agree with the. That this is the sort of external reusurpation that warrants mandamus relief. There is no Historical Authority to have cause of action. To do all of this and not allow an appeal is not only the question goes beyond whether or not this is something that has separation of power. Is he about the law . The allegations here are essentially discoveries start from third parties, primarily businesses. Its not a prerogative of the executive branch. In order to tie that in, you have to ultimately 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 there. Let me ask a fundamental question. They have been given a denial of certification and i dont know another case that has done it in this fashion. He talked about the 10 circuits that dealt with, no one said a District Court can be taken over by Appellate Court. They cannot usurp power. Congress spoke. And it really comes down to a congressional word. Let me finish. And in an instance of a District Court saying denial of certification in that instance, theres no precedent for what happening here today. Thats not true here. There is one circuit. You would have to agree, though, where the weight of authority is against you. Theres no precedent for this. The weight of authority, those entirety, let me say a couple of things. First, there is one circuit that has done exactly what weve said, the 11th circuit in the fernandez case, where they directed a District Court to certify. Their only distinction is the District Court hadnt yet ruled on the motion. The 11th circuit didnt let them exercise discretion. They thought it was obvious they directed it without giving the court a chance to screw it up, which is what the District Court here did. Point two, it is both the d. C. Circuit judge per lawsuit and the fifth circuit in them appellate case that has done the equivalent. They said the District Court abused discretion and remanded for the District Court to reconsider. Now, on this, i have a hard time understanding how any reasonable District Court judge in the face of that order would do anything other than what the judge in deseeded, which is turner d. C. Did, which is turnaround and certify a judge who could care less that a panel on this court said he abused discretion. Sent back to the District Court . That wasnt done here . I think the panel was absolutely right that it is pointless to remand it to the District Court, how do we know that . All we know is the district can thumb its nose at the court. Do you have any case with a court of appeals used mandamus as a vehicle to order a District Court to dismiss a case . Inso, asking the mandamus case of ordering a District Court to dismiss a case. The point of the District Court case was it should have been remiss because it could have been in the jurisdiction. Im saying it went through all the hoops. It did everything it needed to do for certification. The case was before the District Court. It wasnt a question it should have been in another form. Our point was it should be in no forearm. Forum. It errored in dismissing and putting into agency. It said nope, the case should go to the agency. It shouldnt be anywhere. Taking substantive action. Youre saying this court can use mandamus to decide in issue in the case, essentially because it disagrees with what the District Court no, your honor. I agree it has to be a clear and indisputable legal violation. How did the court usurp its authority . You havent told us that. If a District Court takes jurisdiction over a case in front of administrative agency, this court and the Supreme Court recognizes that usurping jurisdiction. Has there been a case can we point to any case where the judiciary has asserted the power to adjoin the president of the United States in the exercise of his official duties . You can call it ministerial, color discretionary. What president is there for the courts to step in and adjoin the president in the exercise of his official duties . And where is the limiting and support to that . The only case i am aware of that has done such a thing is in 1970 the three times the Supreme Court has considered this 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 court rejected it. It said it was illegal. In franklin and nixon, congress had to speak clearly. It is the case if the court can protect an evocative executive agency that question raises the issue of redressability and the scope of any remedy against the president. Youre making an assumption that would be the actual remedy, an injunction against the president. If i understood the Second Circuits opinion, they send out a number of different possibilities, possible remedies, including an injunction not against the president , but against the Business Hotel itself or third parties that might be providing services or paying for services. That may not result in an injunction. I dont think asserting the president is, im responding to the point of whether or not, if the case goes that far, but its not necessarily the case that any remedy would insult result in a direct injunction against the president. That may be true, your honor. But the point that i made, it doesnt matter what the precise form of relief is, whether injunction or relief. The point is none of that can run what is the remedy in this case . The violation that you allege, what is the remedy . Before you get to whether there is a remedy, im just talking about if you deny the fact there is no judicial remedy, what remedy is there to control, at the very first step, congress presumably authorized someone to sue the violation. And then we can have interesting and different constitutional question of whether thats permissible. Congress hasnt even done that. The bare minimum, the separation of powers say this court should not allow a suit to proceed against the president where congress hasnt other to authorize suit in the first place. Right here, right in the center. If the emoluments clause, first it provides compensation for the president. So its a provision. The other is the prohibition of extra compensation. What if congress decided to reduce the president s salary while hes in office . What would be the remedy for the president . Interesting question, your honor. I havent thought of it. You have to be because you say and categorically that an unprecedented suit. You said congress hasnt provided a remedy. These are Just Congress congress would be the one acting against the president s rights. What the courts be the place he would have to seek remedy . I would say the same thing as a high level of generality. The question would be, is that suit authorized . He would have to ask if theres jurisdiction, cause of action. I dont know the answer. There are a lot of statutes that govern whether you can p