The District Court committed multiple fundamental errors in refusing to dismiss this suit and plaintiffs can i ask you to speak up just a little bit . Bring the microphone a little 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 have mandamus relief. The Supreme Court made clear that separation of powers considerations are of utmost important when considering mandamus petitions involving the president of the United States. For example, the court quoted chief Justice Marshall to say that 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 that is 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 Courter erred in refusing to dismiss the seat, if every judge on this court agreed it was error to refuse to dismiss the suit, their position is that this court is still powerless to do anything about it, that the president must go through District Court litigation, be subjected to discovery into his personal finances, into the official acts of his administration. And only at the end of all of that can he take an appeal from a final judgment which will promptly be dismissed. Counsel, i thought that 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 mandamus relief. Is that not so . That is correct, your honor. Okay. So it is not that they are saying that you havent met that. Its you having to demonstrate to us that you have met that, right . Youre part right and part not right, your honor. It is true we have the burden to show clear and indisputable right. Their position, however, is even if the District Court was clearly and indisputably wrong, if every judge in the world would agree that he should dismiss the suit, their position is that we still cant get ap appellate relief. Youre skipping a i think we have to talk about your burden. You would agree with me that mandamus is extraordinary relief. It is, your honor. Go to demonstrating that youre entitled to this extraordinary relief. Absolute. What i wanted to say at the outset is we have two means of showing mandamus. 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. Ill answer both questions at the same time, your honor. I dont actually think there is a material distinction between what the d. C. Circuit did and what 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 1292 b certification without deciding whether it can grant mandamus, it remanded and told the District Court kwhwhy dont you reconsider. With all respect, i dont think that is a material distinction between just ordering the court to say you have clearly erred, you should grant certification and telling a lower court you have clearly erred. There is a big difference in granting mandamus relief. Thats why the question is welltaken. So thats why im sorry to persist in this. Maybe you can explain to us why you meet the three requirements for getting mandamus relief here. Agalet me say one last thing about that and then ill turn to that because theyre related. The reason why i dont think theres a difference is because when you tell a District Court they have clearly abused their discretion and why dont you reconsider, only two things are going to happen. A reasonable District Court will of course follow the courts instruction and basically grant the certification. A totally intransigent District Court will thumb its nose at the court of appeals. You need more of a clear abuse of discretion to get mandamus relief. You recognize that, dont you . Thats the first prong. Clear and indisputable right is different than an abuse of discretion. Than an abuse of discretion, but not a clear abuse of discretion. If you look at cheney, it is expressed and i can read you the quote. The first step 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. We have two different theories. Id like to hear one. If you could answer along with that what was the District 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 of those three questions, is we think it is clear and indisputable that you cannot sue the president of the United States in his official capacity without at a minimum having an express statement authorizing such a suit by congress. We think that is clear and indisputable because the Supreme Court has thrice hold exactly that. I think thats your gloss on what the courts held, but we know from current litigation involving similar issues that several courts have allowed suits against the president to proceed. So how can it be clear and indisputable . With all due respect, your honor, if lower courts are flouting Supreme Court precedent, that does not change the fact that Supreme Court precedent is clear and indisputable. The question in franklin was whether the president was subject to the administrative procedures act. The administrative procedures act covers agencies and it defined agency as any authority of the government of the United States. What the Supreme Court said is that language didnt expressly include the president , but nor did it expressly exclude the president. It therefore reasoned that in light of the separation of powers and the unique constitutional role of the president , textural silence was not enough and you needed an explicit could i go back to the standard here . You said there was a clear legal error. Is it your view that mandamus should issue if a court thinks theres a clear error . Because thats the standard we review when were reviewing factual findings. I dont think anyone believes we should grant mandamus on that ground. I think youre taking that out of context from cheney. I know the quote youre talking about but its in a paragraph that talks about how this is an incredibly drastic remedy, how its been traditionally used onld only to ensure that District Court has not usurped gross authority, gone outside its jurisdiction. I think saying clear error is not really the equivalent to what were talking about now. We think any of the formulations equally apply when you have a suit that is against the president of the United States that is categorically foreclosed by Supreme Court precedent. Let me point your honor to this courts precedent. If a lawsuit is filed in federal District Court that should have been before a federal agency, that is the sort of clear usu usurpation that warrants mandamus review. As i understand your position, you are 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. The point i was trying to make about s an agency that is merely exercising the president s executive power, then surely it is a clear usurpation of jurisdiction. You referred to franklin versus massachusetts and cited it, i think, accurately. That left open the possibility of a suit against the president for a ministerial act and theres other cases, the clinton versus new york and the d. C. Circuit case against president nixon. If you could address whether you think the relief being sought is ministerial or discretionary, id appreciate your position on that. Two points about that. First, i dont think this is ministerial within the meaning of those cases. I think in fact their argument that it is is making the precise error that the Supreme Court in mississippi versus johnson rejected. In that case the plaintiff there tried to say that the president it was ministerial because the president , of course, could not act unconstitutionally. The challenge was that certain reconstruction acts were unconstitutional. The Supreme Court said no, that is not what ministerial means. The question is whether theres any discretion. If theres a reasonable dispute as to whether this act is unconstitutional, that is not ministerial, its executive. The second point is that question is a question about whether it would be constitutional to allow a suit against the president. Theres an antecedent step that i think is very important. At a minimum congress should have to expressly authorize such a suit. Congress should have to say that the president can be sued for ministerial acts. Thats the clear statement in franklin. Its the point of the clear statement requirement in nixon versus fitzgerald. Why would this court construe an implied cause of action in equity for the first time in this nations history to present serious constitutional questions. This court avoids constitutional questions. That follows also just from basic principles of equity. Theyre relying on the traditional common law equity power to enjoin federal officials. 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 that the scope of the traditional remedies has to be informed by history. The whole point of the Supreme Courts decision in groupo mexicano is if youre trying to extend a traditional remedy, that has to be done by congress because of separation of powers principles. If thats true where the dispute was over wherever prejudgment or post judgment credits could file a suit were treating this as if its some ordinary run of the mill case. 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 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 neither of those. Theres no direct the government is not acting directly against any individual. And 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 an excellent summary of our argument. All i can say in addition to amplify it theres no question there. 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 warrant mandamus relief, im hard pressed to see how this court could say merely treading on jurisdiction is enough to warrant mandamus review. Whats the answer to the question . I understand what he said. You said you agree with it. What is the answer to the question . That this is exactly the sort of extraordinary usurpation of jurisdiction that warrants mandamus relief. There is no Historical Authority to sue the president , no Historical Authority to have a cause of action to enforce the emoluments clause against anyone. To do all of this and not even allow a interlocutory appeal the question goes beyond whether or not this is something the president would challenge separation of power. It really goes to the question of is he above the law and the allegations here are really essentially sk lly discovery be sought from third parties, primarily businesses. 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 squirrely there. Let me ask a more fundamental question because you started your argument out to the effect that they say you cant even be here, which before you even Start Talking about mandamus, you have to look to determine 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 ten circuits that dealt with, nobody has said a District Court can be taken over by the Appellate Court. The Appellate Court cannot usurp pou power. It really comes down to a congressional word. Let me finish president in the incidence of the District Court seeing denial of certification in that particular instance, theres really no precedent for whats happening here today. Thats not true, your honor. Theres one circuit. You would have to agree that the weight of authority is against you on that point. Let me finish. My word is precedent. Theres no precedent for this. There may be another circuit but the weight of authority goes entirely the other way. Let me say a couple of things about the weight of authority. First, as judge motz recognized there is one circuit thats done exactly what we said which is the 11th scircuit where they directed a District Court to certify. Their distinction of that case is the District Court there hadnt yet ruled on the certification motion. It directed it without even giving the District Court the chance to totally screw up which is what the District Court did here. They said that the District Court clearly abused its discretion and they remanded for the District Court to reconsider. Now, 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 completely intransigent judge who could careless that a panel of this court said he abused his discretion. Promptly turned around and certify. Yes. That wasnt done here. The panel said how do we know that . The District Court can thumb its nose at this court. Do you have any case where a court of appeals has used man day n mandamus as a vehicle to grant relief, to grant the substantive relief of ordering a District Court to dismiss a case. This courts decision in sewell. The court in this case 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 form. Our point is that it should be in no forum. Its af this Court Granted mandamus to say the case should go to an agency. To use the vehicle of mandamus to decide an issue because it disagrees with what the District Court did. I agree that it has to be a clear and indisputable legal violation. How did the court usurp its authority . If a District Court takes jurisdiction over a case that belongs in front of an administrative agency, thats usurping the executive agencys jurisdiction. 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 ministerial, you can call it discretionary. But what precedent is there for the courts to step in and enjoy the president in the exercise of his official duties and where is the limiting principle to that . The only case that i am aware of that has done such a thing and considering it and holding it at the appellate level is the 1976 case in the District Court. The times the Supreme Court has considered this issue of whether you can have a suit against the president for his official action, three times its come up and three times the Supreme Court has rejecting it. In mississippi versus johnson they said it was legal. In another they said at a minimum congress had to speak clearly. I think it is absolutely the case that if this court can protect an executive agencys that question sort of raises the issue of redressability and the appropriate scope of any remedy against the president. But youre making an assumption that that would be the actual remedy, an injunction against the president. The Second Circuit