MEMORANDUM OPINION
Emmet
G. Sullivan United States District Judge.
I.
Introduction
In its
previous Opinion, the Court held that plaintiffs,
approximately 201 Members of the 535 Members of the United
States Senate and House of Representatives, had standing to
sue defendant Donald J. Trump in his official capacity as
President of the United States (“the President”)
for alleged violations of the Foreign Emoluments Clause
(“the Clause”). See Blumenthal v. Trump,
335 F.Supp.3d 45, 72 (D.D.C. 2018) (“Blumenthal
I”). The President has moved to dismiss the
Amended Complaint for failure to state a claim because,
inter alia, he contends that “Emolument”
should be narrowly construed to mean “profit arising
from an official's services rendered pursuant to an
office or employ.” Def.'s Mot. to Dismiss
(“Mot. to Dismiss”), ECF No. 15- 1 at
38.[1]
The President's definition, however, disregards the
ordinary meaning of the term as set forth in the vast
majority of Founding-era dictionaries; is inconsistent with
the text, structure, historical interpretation, adoption, and
purpose of the Clause; and is contrary to Executive Branch
practice over the course of many years.
Pursuant
to the Clause, certain federal officials, including the
President, shall not “accept” an
“Emolument” from “any King, Prince, or
foreign State” without “the Consent of the
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 28 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 the Congress.” Id.
¶ 92.
In
holding that plaintiffs had standing to sue the President in
Blumenthal I, the Court deferred ruling on the
remaining arguments in the President's motion to dismiss:
(1) failure to state a claim upon which relief can be
granted;
(2) lack of a cause of action to seek the relief requested;
and
(3) the injunctive relief sought is unconstitutional. Mot. to
Dismiss, ECF No. 15-1 at 17-18.
Upon
careful consideration of the President's motion to
dismiss, the opposition and reply thereto, the relevant
arguments of amici, [2] and for the reasons explained
below, the Court finds that: (1) plaintiffs have stated a
claim against the President for allegedly violating the
Foreign Emoluments Clause; (2) plaintiffs have a cause of
action to seek injunctive relief against the President; and
(3) the injunctive relief sought is constitutional. The Court
therefore DENIES the portions of the motion
to dismiss that were deferred in the Court's prior Order.
II.
Factual Background
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. In
particular, 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
(internal quotation mark omitted). Since being elected
President, he has “not divested or otherwise given up
his ownership interest in his worldwide business
holdings.” Id. ¶ 36.
As a
result of his financial interests, plaintiffs allege the
President has accepted, and will accept in the future,
Emoluments from foreign states. Id. ¶ 37.
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. Public reporting
has also confirmed this to be the case. Id.
Plaintiffs
allege that “[t]hese various benefits from foreign
governments-payments, loans, permits, exemptions, policy
changes, and intellectual property rights-constitute
prohibited ‘Emolument[s]' and/or
‘present[s]' under the Foreign Emoluments Clause .
. . .” Id. ¶ 38 (citation omitted).
Specifically, the President has allegedly accepted valuable
intellectual property rights from the Chinese government
without seeking and obtaining the consent of Congress.
Id. ¶¶ 44-50. The President has also
allegedly accepted payments for hotel rooms and events from
foreign diplomats and from foreign lobbying groups paid for
by foreign governments without seeking and obtaining the
consent of Congress. Id. ¶¶ 52-57. The
President has allegedly accepted payments from foreign
governments derived from real estate holdings, id.
¶¶ 58-62, as well as licensing fees paid by foreign
governments for “The Apprentice, ” id.
¶¶ 63-65, all without seeking and obtaining the
consent of Congress, id. ¶¶ 59, 62, 65.
Finally, the President has allegedly accepted regulatory
benefits from foreign governments without seeking and
obtaining the consent of Congress. Id. ¶¶
66-67.
III.
Standard of Review
“A motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) “tests the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must contain
“‘a short and plain statement of the claim
showing that the pleader is entitled to relief,' in order
to ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration in original) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). While detailed factual allegations
are not necessary, a plaintiff must plead enough facts
“to raise a right to relief above the speculative
level.” Id.
When
ruling on a Rule 12(b)(6) motion, the Court may consider
“the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint,
and matters about which the Court may take judicial
notice.” Gustave-Schmidt v. Chao, 226
F.Supp.2d 191, 196 (D.D.C. 2002). The Court must construe the
complaint liberally in plaintiffs' favor and grant
plaintiff the benefit of all reasonable inferences deriving
from the complaint. Kowal v. MCI Commc'ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court need not
accept inferences that are “unsupported by the facts
set out in the complaint.” Id. “Nor must
the [C]ourt accept legal conclusions cast in the form of
factual allegations.” Id. “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
IV.
Analysis
A.
Constitutional Interpretation
“When
interpreting a constitutional provision, [the Court] must
look to the natural meaning of the text as it would have been
understood at the time of the ratification of the
Constitution.” Canning v. N.L.R.B., 705 F.3d
490, 500 (D.C. Cir. 2013) (citing District of Columbia v.
Heller, 554 U.S. 570 (2008)). “In interpreting the
text [the Court is] guided by the principle that ‘[t]he
Constitution was written to be understood by the voters; its
words and phrases were used in their normal and ordinary as
distinguished from technical meaning.'”
Heller, 554 U.S. at 576 (quoting United States
v. Sprague, 282 U.S. 716, 731 (1931)). “Normal
meaning may of course include an idiomatic meaning, but it
excludes secret or technical meanings that would not have
been known to ordinary citizens in the founding
generation.” Id. at 576-77. In determining the
normal and ordinary meaning, the Court is to consider
founding-era dictionaries and other contemporaneous sources.
See, e.g., N.L.R.B. v. Canning,
573 U.S. 513, 527 (2014); Heller, 554 U.S. at
581-86. When the text is ambiguous, the Court is to consider
the purpose of the clause and the historical interpretations
and applications of the clause. Canning, 573 U.S. at
528-29; see also Heller, 554 U.S. at 592
(“This meaning is strongly confirmed by the historical
background of the [provision].”). The Court is also to
“treat[] [government] practice as an important
interpretive factor even when the nature or longevity of that
practice is subject to dispute, and even when that practice
began after the founding era.” Canning, 573
U.S. at 525, 530-32 (considering opinions of the Office of
Legal Counsel (“OLC”) and the Comptroller General
in determining the meaning of the Recess Appointments
Clause).
B.
“Emolument” Is Broadly Defined as Any Profit,
Gain, or Advantage[3]
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.
1.
The Ordinary Meaning, Text, Structure, Adoption, and
Historical Interpretation of the Clause; Constitutional
Purpose; and Consistent Executive Branch Practice Support a
Broad Interpretation of “Emolument”
a. Ordinary Meaning of
“Emolument”
The
parties dispute whether the profits that the President's
business interests earn from foreign governments are
“Emoluments” covered by the Clause. The President
contends that the Clause “is not a blanket prohibition
on commercial transactions with foreign governments by
businesses in which the official has a financial interest,
” but rather “applies only to the receipt of
compensation for services rendered by an official in an
official capacity or in an employment (or equivalent)
relationship with a foreign government, and to the receipt of
honor and gifts by an office-holder from a foreign
government.” Mot. to Dismiss, ECF No. 15-1 at 33-34. In
support of his position, the President explains that at the
time of the Nation's founding, an
“‘[E]molument' was a common characteristic of
a federal office . . . comprehensively describ[ing]
‘every species of compensation or pecuniary profit
derived from a discharge of the duties of the
office.'” Id. at 34 (alteration in
original) (first citing United States v. Hartwell,
73 U.S. 385, 393 (1867); and then quoting Hoyt v. United
States, 51 U.S. 109, 135 (1850).[4] According to the President,
this was because most federal officials did not receive
salaries as is the case today, but rather, were compensated
by fees in exchange for their services. Id.
Therefore, he argues, this “common usage” of the
word at the time of the founding compels interpreting the
term to mean “profit arising from an office or
employ.” Id. at 35 (quoting James Barclay,
A Complete & Universal English Dictionary on a New
Plan (1774)(“Barclay's
Dictionary”)).[5] To illustrate, the President provides two
examples of what would constitute Emoluments under his
definition: (1) “a federal official would receive an
Emolument if he or she was paid by a foreign government to
take certain official actions”; and (2) “an
Emolument would [] be received if an official became an
employee or entered an employment-like relationship with the
foreign government, such as if a federal government lawyer
provided legal advice and services to a paying foreign
power.” Id. According to the President,
“[t]his interpretation is consistent with the nature of
the other prohibited categories in the Foreign Emoluments
Clause: present, office, and title, which are all things
personally conferred or bestowed on a U.S. official holding
an ‘Office of Profit or Trust.'” Id.
Plaintiffs
rely on contemporaneous dictionaries, general-purpose
writings, contemporaneous state constitutions, and legal
decisions to support their argument that at the time the
Constitution was written, “‘[E]molument' was
a commonly used term that often referred to profit or gain in
general.” Pls.' Opp'n, ECF No. 17 at 39 (citing
The Oxford English Dictionary (2d ed. 1989)
(referring to eighteenth century texts); Samuel Johnson,
A Dictionary of the English Language (1755); John
Mikhail, The Definition of “Emolument” in
English Language & Legal Dictionaries, 15-23-1806,
at 8 (July 9, 2017) (working paper),
https://papers.ssrn.com/so13/papers.cfm?abstractid=2995693
(explaining that [E]molument was defined as
“‘profit,' ‘advantage,'
‘gain,' or ‘benefit' . . . in every known
English language dictionary” published in the
seventeenth and eighteenth centuries, that this was the
exclusive definition provided in over 92% of these
dictionaries, and that the President's preferred
definition appears in less than 8% of these dictionaries, but
that the broader definition also appears in these latter
dictionaries)). Plaintiffs also emphasize, again relying on
contemporaneous documents, that the term “was
frequently used to mean the profits accruing from private
financial transactions.” Id. at 40.
Plaintiffs
maintain that interpreting the term to “requir[e] an
employment-like relationship[] is based on a flawed reading
of Founding-era dictionaries . . . [and] requiring the
provision of specific services in an official capacity”
lacks legal support. Id. at 41. Moreover, they argue
that even if the Court were to adopt the narrow definition
that appears in the Oxford English Dictionary-“[p]rofit
or gain arising from station, office, or employment; dues,
reward; remuneration, salary”-“the gain arising
from President Trump's status as the head of a worldwide
business empire” falls within this definition.
Id. Furthermore, according to plaintiffs,
“[t]he narrower definition the President cites also
embraces profit or gain ‘arising from [his]
office,' as when foreign governments seek his favor by
granting him lucrative trademarks or selecting his
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