Blumenthal v. Trump, Civil Action No. 17-1154 (EGS)

• Decision Date: 28 September 2018
• Docket Number: Civil Action No. 17-1154 (EGS)
• Parties: Senator Richard BLUMENTHAL, et al., Plaintiffs, v. Donald J. TRUMP, in his official capacity as President of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

335 F.Supp.3d 45

Senator Richard BLUMENTHAL, et al., Plaintiffs,

v.Donald J. TRUMP, in his official capacity as President of the United States, Defendant.

Civil Action No. 17-1154 (EGS)

United States District Court, District of Columbia.

Signed September 28, 2018

Brian Rene Frazelle, Brianne Jenna Gorod, Elizabeth Bonnie Wydra, Washington, DC, for Plaintiffs.

Jean Lin, Brett A. Shumate, U.S. Department of Justice, Washington, DC, for 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, 2 L.Ed. 60 (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. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 , 573 U.S. 149, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (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, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Raines v. Byrd , 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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, 104 S.Ct. 3315, 82 L.Ed.2d 556 (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, 112 S.Ct. 2130 (1992) ); see also Hollingsworth v. Perry , 570 U.S. 693, 700, 705, 133 S.Ct. 2652, 186 L.Ed.2d 768 (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...