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Blumenthal v. Trump

United States District Court, District of Columbia

September 28, 2018

Senator RICHARD BLUMENTHAL, et al., Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, Defendant.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE

         I. Introduction

         When Members of Congress sue the President in federal court over official action, a court must first determine whether the dispute is a “Case” or “Controversy” under Article III of the United States Constitution, rather than a political dispute between the elected branches of government. A critical part of this inquiry is whether the plaintiffs have legal standing to bring the action. Whether legislators have standing to sue often turns on whether they can obtain the remedy they seek from the court from fellow legislators. When a legislative remedy is available, courts generally dismiss the case on jurisdictional grounds. The Supreme Court, however, has not foreclosed federal courts from appropriately exercising jurisdiction over certain types of disputes between the political branches. This case is one of those disputes. And when a case is properly before a court because it presents an Article III “Case” or “Controversy, ” it is the role of the Judiciary “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

         Plaintiffs, approximately 201 minority Members of the 535 Members of the United States Senate and House of Representatives, allege that Donald J. Trump in his official capacity as President of the United States (“the President”) is violating the Foreign Emoluments Clause (“Clause”). Under this Clause, certain federal officials, including the President, may not “accept” an “emolument” from “any King, Prince or foreign State” without “the Consent of Congress.” U.S Const. art. I, § 9, cl. 8. In Count I, plaintiffs seek declaratory relief pursuant to 28 U.S.C. § 2201 in the form of a declaratory judgment stating that the President is violating the Clause when he accepts emoluments from foreign states without first seeking the consent of Congress. Am. Compl., ECF No. 14 ¶¶ 85-86. In Count II, plaintiffs seek injunctive relief pursuant to the Court's inherent authority to grant equitable relief and pursuant to 18 U.S.C. § 1331 in the form of a Court order enjoining the President from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of Congress.” Id. ¶ 92.

         Pending before the Court is the President's motion to dismiss. The President argues that this case should be dismissed on four independent grounds, [1] but the threshold question is whether plaintiffs have standing to bring their claims. This opinion addresses only this threshold question. With respect to the grounds for dismissal that turn on the merits, the parties dispute whether the profits that the President's business interests earn from foreign governments are covered “emoluments.” However, for the purpose of determining whether plaintiffs have standing to sue, the Court must accept as true the allegations that the President has accepted prohibited foreign emoluments without seeking the consent of Congress.

         As is explained more fully below, the central question for standing purposes is how to characterize the injury that occurs when the President fails to seek the consent of Congress, as required by the Clause. Plaintiffs argue that each Member of Congress suffers a particularized and concrete injury when his or her vote is nullified by the President's denial of the opportunity to vote on the record about whether to approve his acceptance of a prohibited foreign emolument. The President argues that this is an intra-branch dispute which does not belong in federal court because the plaintiffs' remedy is to convince a majority of their colleagues in both Houses to pass legislation addressing the President's ability to accept prohibited foreign emoluments.

         Upon careful consideration of the President's motion to dismiss, the opposition and reply thereto, the relevant arguments of amici, [2] the parties' arguments at the June 7, 2018 motion hearing, and for the reasons explained below, the Court finds that the plaintiffs have standing to sue the President for allegedly violating the Foreign Emoluments Clause. The Court therefore DENIES IN PART the motion to dismiss and DEFERS ruling on the remaining arguments in the motion to dismiss.

         II. Factual Background

         Relevant to whether they have standing to bring their claims, plaintiffs allege that the President “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments.” Am. Compl., ECF No. 14 ¶ 2. Plaintiffs also allege that the President owns “‘more than 500 separate entities-hotels, golf courses, media properties, books, management companies, residential and commercial buildings . . . airplanes and a profusion of shell companies set up to capitalize on licensing deals.'” Id. ¶ 34 (citation omitted).

         As a result of his financial interests, plaintiffs allege the President has accepted, and will accept in the future, emoluments from foreign states. Id. Indeed, the President has acknowledged “that his businesses receive funds and make a profit from payments by foreign governments, and that they will continue to do so while he is President.” Id. ¶ 37. Public reporting has also confirmed this to be the case. Id. The President, through his personal attorney, has likewise asserted that the Constitution does not require “him to seek or obtain Congress' consent before accepting benefits arising out of exchanges between foreign states and his businesses.” Id. ¶ 40. The President has therefore not provided any information to Congress about any foreign emoluments he has received. Id. ¶ 41. Plaintiffs allege that because the President has denied them the opportunity to give or withhold their consent, he has injured them in their roles as Members of Congress, Id. ¶ 5, and that they cannot force the President to comply with the Constitution absent a judicial order, Id. ¶ 83.

         III. Standard of Review

         A motion to dismiss for lack of standing is properly considered a challenge to the Court's subject matter jurisdiction and should be reviewed under Federal Rule of Civil Procedure 12(b)(1). Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)(“[T]he defect of standing is a defect in subject matter jurisdiction.”). The Court must therefore consider the defendant's motion to dismiss pursuant to Rule 12(b)(1) before reaching a merits challenge pursuant to Rule 12(b)(6). Sinochem Int'l Co. v. Malay Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007). To survive a Rule 12(b)(1) motion to dismiss, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. Moran v. U.S. Capitol Police Bd., 820 F.Supp.2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “Because Rule 12(b)(1) concerns a court's ability to hear a particular claim, the court must scrutinize the plaintiff's allegations more closely when considering a motion to dismiss pursuant to Rule 12(b)(1) than it would under a motion to dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S. Capitol Police Bd., 826 F.Supp.2d 59, 65 (D.D.C. 2011). In so doing, the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in favor of plaintiffs, but the court need not “accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations.” Rann v. Chao, 154 F.Supp.2d 61, 63 (D.D.C. 2001).

         IV. Analysis

         A. Standing

         “Article III of the Constitution limits the jurisdiction of the federal courts to ‘Cases' and ‘Controversies.'” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (quoting U.S. Const. art. III, § 2). “‘One element of the case-or-controversy requirement' is that plaintiffs ‘must establish that they have standing to sue.'” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). The standing requirement “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id. The standing inquiry “often turns on the nature and source of the claim asserted” and the specific facts alleged. Warth v. Seldin, 422 U.S. 490, 500 (1975). “[T]he law of Art. III standing is built on a single basic idea-the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752 (1984).

         To establish standing, “a plaintiff must show (1) an ‘injury in fact,' (2) a sufficient ‘causal connection between the injury and the conduct complained of,' and (3) a ‘likel[ihood]' that the injury ‘will be redressed by a favorable decision.'” Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan, 504 U.S. at 560-61 (1992)); see also Hollingsworth v. Perry, 570 U.S. 700, 705 (2013) (“To have standing, a litigant must seek relief for an injury that affects him in a personal and individual way.”). These requirements help to “assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). “The [effect of the] exercise of judicial power [is] most vivid when a federal court declares unconstitutional an act of the Legislative or Executive Branch.” Id. at 473. Therefore, to ensure the “continued effectiveness of the federal courts in performing that role . . . it has been recognized as a tool of last resort.” Id. at 473-74.

         “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561 (citations omitted). “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id.

         When considering whether a legislator has standing, the Court “must carefully inquire as to whether [plaintiffs] have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.” Raines, 521 U.S. at 820. The “standing inquiry [is] especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Id. at 819-20.

         B. Foreign Emoluments Clause

         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.

U.S Const. art. I, § 9, cl. 8. “[T]he language of the Emoluments Clause is both sweeping and unqualified.” 17 Op. O.L.C. 114, 121 (1993). The acceptance of an emolument barred by the Clause is prohibited unless Congress chooses to permit an exception. Id.; see also Letter from James Madison to David Humphreys (Jan. 5, 1803), https://founders.archives.gov/documents/Madison/02-04-02-0275# (“the Constitution of the United States has left with Congress the exclusive authority to permit the acceptance of presents from foreign Governments by persons holding Offices under the United States”). And the President may not accept any emolument until Congress votes to give its consent.

         The Clause was intended by the Framers to guard against “corruption and foreign influence.” 3 M. Farrand, Records of the Federal Convention of 1787, 327 (1966). Historically, Presidents have complied with the Clause by either seeking and obtaining congressional consent prior to accepting foreign presents or emoluments, or by requesting an opinion from the Executive or Legislative Branch's advisory office as to whether the Clause applies.[3] See Br. of Federal Jurisdiction and Constitutional Law Scholars as Amici Curiae in Support of Pls., ECF No. 44 at 24.[4]One such example occurred in 1830 when President Jackson placed “‘at the disposal of Congress'” a gold medal presented to him by the Republic of Colombia, noting that accepting presents from a foreign government is prohibited by the Constitution. Id. (quoting Message of President Andrew Jackson to the Senate and House of Representatives, dated January 19, 1830, 3 Compilation of the Messages and Papers of the Presidents 1029, 1030 (James D. Richardson ed., 1897)). Similarly, when the King of Siam presented President Lincoln with various gifts, he informed Congress, which directed that the gifts “‘be deposited in the collection of curiosities at the Department of Interior.'” Id. at 25 (quoting Joint Resolution No. 20, A Resolution providing for the Custody of the Letter and Gifts from the King of Siam, Res. 20, 37th Cong., 12 Stat. 616 (1862)).

         Modern Presidents, except for President Trump, have sought advice from the Department of Justice Office of Legal Counsel (“OLC”) prior to accepting potentially covered emoluments. Id. For example, President Kennedy requested an opinion on whether the offer of an “honorary Irish citizenship” would fall within the scope of the Clause. Id. (citing 1 Op. O.L.C. Supp. at 278). And prior to his acceptance of the Nobel Peace Prize in 2009, President Obama requested an opinion from OLC as to whether accepting the prize would conflict with the Clause. Id.

         Since the Clause prohibits the President from accepting a prohibited foreign emolument unless Congress votes to consent, the Constitution gives each individual Member of Congress a right to vote before the President accepts. Under the Constitution, Congress expresses its consent through the combined votes of its individual members. U.S. Const. art. I, § 9, cl. 8. Congress “consist[s] of a Senate and House of Representatives.” Id. art. I, § 1. The “Consent of Congress” is obtained when a majority of the individual members of each House vote to consent. Id. art. I, § 3, cl. 1 (“each Senator shall have one Vote”); Id. art. I, § 5, cl. 3 (requiring, at the request of one-fifth of those present, that “the Yeas and Nays of the Members of either House on any question” to be recorded). That Congress acts as “the body as a whole”[5] in providing or denying consent does not alter each Member's constitutional right to vote before the President accepts a prohibited foreign emolument because the body can give its consent only through a majority vote of its individual members.

         C. Plaintiffs Have Standing to Bring their Claims

         The President argues that the Court lacks jurisdiction over plaintiffs' claims because plaintiffs have not met their burden to establish a judicially cognizable injury as is required by Article III. Def.'s Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 15 at 21-28; Def.'s Reply (“Reply”), ECF No. 28 at 10-19. The President also disputes that the alleged injury is fairly traceable to him. Mot. to Dismiss, ECF No. 15-1 at 24; Reply, ECF No. 28 at 8.

         Plaintiffs contend that they have standing: (1) the injury-in-fact they have suffered is that the President has denied them a voting opportunity to which the Constitution entitles them; (2) the injury is fairly traceable to the President's conduct because he has neither asked for their consent nor provided them with any information about the prohibited foreign emoluments he has already allegedly accepted; and (3) the injury can be redressed by a favorable judicial decision if the Court requires the President to obtain congressional consent before accepting prohibited foreign emoluments. Pls.' Opp'n, ECF No. 17 at 13.

         As discussed below, the President's arguments rely on a repeated misstatement of the injury alleged and on proffers of plainly inadequate legislative remedies. The Court is persuaded that plaintiffs have sustained their burden to show that they have standing to bring their claims: (1) they have adequately alleged a judicially cognizable injury that is fairly traceable to the President and can be redressed by a favorable judicial decision; and (2) although plaintiffs' claims raise separation-of-powers concerns, plaintiffs have no adequate legislative remedy and this dispute is capable of resolution through the judicial process.

         1. Supreme Court and D.C. Circuit Precedent

         a. Raines v. Byrd

         The parties rely heavily on the Supreme Court's decision in Raines v. Byrd. See generally Mot. to Dismiss, ECF No. 15-1; Pls.' Opp'n, ECF No. 17; Reply, ECF No. 28 (discussing Raines, 521 U.S. 811 (1997)). The President argues that plaintiffs lack standing pursuant to Raines; plaintiffs respond that Raines does not foreclose their standing to bring their claims and indeed provides support for it. The Court will therefore discuss the case in detail.

         In Raines, six members of Congress who had voted against the Line Item Veto Act (“Act”) sued the Secretary of the Treasury and the Director of the Office of Management and Budget, challenging the constitutionality of the Act. Raines, 521 U.S. at 814. The Act authorized the President to “‘cancel' certain spending and tax benefit measures after he ha[d] signed them into law.” Id. The plaintiffs claimed that the Act injured them in their official capacities by: (1) “‘alter[ing] the legal and practical effect of all votes they may cast on bills'” subject to the Act; (2) “‘divest[ing] [them] of their constitutional role in the repeal of legislation'”; and (3) “‘alter[ing] the constitutional balance of powers between the Legislative and Executive Branches . . . .'” Id. at 816 (quoting Compl.).

         At issue was whether the plaintiffs had standing to bring their claims. The Court began its inquiry by focusing on the requirement in standing analysis that the injury be a personal one: “We have consistently stressed that a plaintiff's complaint must establish that he has a ‘personal stake' in the alleged dispute, and that the alleged injury suffered is particularized as to him.” Id. at 819 (quoting Lujan, 504 U.S. at 560-61 and n.1). Next, the Court noted “[w]e have also stressed that the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered ‘an invasion of a legally protected interest which is . . . concrete and particularized,' Lujan, 504 U.S. at 560, and that the dispute is ‘traditionally thought to be capable of resolution through the judicial process.'” Id. (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). Finally, the Court noted that the jurisdictional standing requirement must be strictly complied with: “our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Id. at 819-20 (citations omitted). “‘[T]he law of Art. III standing is built on a single basic idea-the idea of separation of powers.'” Id. at 820 (quoting Allen, 468 U.S. at 751). In view of these observations, the Court concluded that it “must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.” Id.

         The Court distinguished Powell v. McCormack, in which it held that a Congressman's “constitutional challenge to his exclusion from the House of Representatives (and his consequent loss of salary) presented an Article III case or controversy, ” Id. at 820-21 (citing Powell, 395 U.S. 486, 496, 512-14 (1969)), on two grounds. First, the Raines plaintiffs had not been singled out for unfavorable treatment from the other members of their respective bodies as occurred in Powell; rather, “[t]heir claim is that the Act causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally.” Id. at 821. Second, the Raines plaintiffs “[did] not claim that they have been deprived of something to which they are personally entitled . . .” id.; rather, their

claim of standing is based on a loss of political power, not loss of any private right, which would make the injury more concrete. . . . [T]he injury claimed by the Members of Congress here is not claimed in any private capacity but solely because they are Members of Congress. If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member's seat, a seat which ...

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