RICHARD BLUMENTHAL, ET AL., APPELLEES v. DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES OF AMERICA, APPELLANT
No. 19-5237
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided February 7, 2020
Argued December 9, 2019
Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01154)
Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Mark R. Freeman, Michael S. Raab, Martin V. Totaro, and Joshua Revesz, Attorneys.
Elizabeth B. Wydra argued the cause for appellees. With her on the brief were Brianne J. Gorod and Brian R. Frazelle.
Katharine M. Mapes and Jeffrey M. Bayne were on the brief for amici curiae Separation of Powers Scholars in support of plaintiffs-appellees
Walter E. Dellinger, III was on the brief for amici curiae Bipartisan Former Members of Congress in support of appellees.
Ruthanne M. Deutsch and Hyland Hunt were on the brief for amici curiae Scholars of Standing, Federal Jurisdiction, and Constitutional Law in support of plaintiffs-appellees.
Harold Hongju Koh was on the brief for amici curiae Former National Security Officials in support of plaintiffs-appellees.
Erica C. Lai, Melissa H. Maxman, and Danielle C. Morello were on the brief for amici curiae Certain Legal Historians in support of plaintiffs-appellees and affirmance.
Anthony J. May and Jean M. Zachariasiewicz were on the brief for amici curiae Administrative Law, Constitutional Law, and Federal Courts Scholars in support of appellees and in support of affirmance.
Tejinder Singh was on the brief for amici curiae Former Government Ethics Officers supporting plaintiffs-appellees and affirmance.
Colin E. Wrabley and M. Patrick Yingling were on the brief for amici curiae The Niskanen Center, et al. in support of appellees and affirmance of the decision below.
Robert D. Dinerstein was on the brief for amici curiae Professor Clark D. Cunningham and Professor Jesse Egbert in support of neither party.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: In this case, 215 Members of the Congress (Members) sued President Donald J. Trump based on allegations that he has repeatedly violated the United States Constitution‘s Foreign Emoluments Clause (Clause). The district court‘s denial of the President‘s motion to dismiss begins with a legal truism: “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.” Blumenthal v. Trump, 335 F. Supp. 3d 45, 49–50 (D.D.C. 2018). Although undoubtedly accurate, the district court‘s observation fails to tell the rest of the story, which story we set forth infra. Because we conclude that the Members lack standing, we reverse the district court and remand with instructions to dismiss their complaint.
I
Troubled that “one of the weak sides of Republics was their being liable to foreign influence & corruption,” 1 The Records of the Federal Convention of 1787 289 (Max Farrand ed., 1911), the Framers prohibited “Person[s] holding any Office of Profit or Trust under” the United States from accepting from a foreign sovereign “any present, Emolument, Office, or Title, of any kind whatever” without the “Consent of the Congress.”1 Justice Joseph Story described the Clause as “founded in a just jealousy of foreign influence of every sort,”
[a] patriot will not be likely to be seduced from his duties to his country by the acceptance of any title, or present, from a foreign power. An intriguing, or corrupt agent, will not be restrained from guilty machinations in the service of a foreign state by such constitutional restrictions.
3 Joseph Story, Commentaries on the Constitution of the United States § 1346 (Boston, Hilliard, Gray, & Co. 1833). The Members allege that President Trump “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments” and that “[b]y virtue of that financial interest, [he] has accepted, or necessarily will accept, ‘Emoluments’ from ‘foreign States’ while holding the office of President.” Second Amended Complaint at ¶ 2, Blumenthal v. Trump, No. 17-1154 (D.D.C. June 26, 2019), ECF No. 83 (brackets omitted). They allege the President‘s failure to seek and obtain congressional consent has “completely nullified,” id. at ¶ 82, the votes they are authorized to cast to approve or disapprove his acceptance of foreign emoluments. See id. at ¶ 3 (“Because the Foreign Emoluments Clause requires the President to obtain ‘the Consent of the Congress’ before accepting otherwise prohibited ‘Emoluments,’ Plaintiffs, as members of Congress, must have the opportunity to cast a binding vote that gives or withholds their ‘Consent’ before the President accepts any such ‘Emolument.‘“) (bracket omitted). They further allege that the Clause is “unique.” Appellees’ Br. at 6.
First, the Clause imposes a procedural requirement (obtain “the Consent of the Congress“) that federal officials must satisfy before they take a specific action (accept “any” emolument from “any . . . foreign State“).
U.S. Const. art. I, § 9, cl. 8 . This requirement of a successful prior vote, combined with the right of each Senator and Representative to participate in that vote, means that every time the President accepts an emolument without first obtaining congressional consent, Plaintiffs are deprived of their right to vote on whether to consent to its acceptance.Second, the Foreign Emoluments Clause regulates the private conduct of federal officials. Because President Trump is violating the Clause through his private businesses, without the need for government funds or personnel, Congress cannot use its power of the purse—normally the “ultimate weapon of enforcement available to the Congress“—to stop him. United States v. Richardson, 418 U.S. 166, 178 n.11 (1974). Without that tool or any other effective means of forcing President Trump to conform his personal conduct to the Clause‘s requirements, [the Members] have no adequate legislative remedy for the President‘s denial of their voting rights.
Id. at 6–7.
The Members filed their complaint on June 14, 2017, seeking declaratory and injunctive relief against the President in his official capacity. The President moved to dismiss, arguing that 1) the Members lack standing; 2) no cause of action authorized their lawsuit; 3) they failed to state a claim upon which relief could be granted; and 4) the requested relief, an injunction against the President in his official capacity, violates the Constitution. Statement of Points and Authorities in Support of Defendant‘s Motion to Dismiss, Blumenthal, 335 F. Supp. 3d 45 (D.D.C. 2018) (No. 17-1154), ECF No. 15-1. The district court bifurcated the issues, addressed standing
On appeal of a dismissal denial, we review the district court‘s legal determinations de novo and assume the truth of the plaintiff‘s material factual allegations. Z Street v. Koskinen, 791 F.3d 24, 28 (D.C. Cir. 2015). The district court‘s jurisdiction “aris[es] under the Constitution . . . of the United States.”
II
“[N]o principle is more fundamental to the judiciary‘s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)) (bracket and quotation marks omitted). To establish Article III standing, a plaintiff must, as an “irreducible constitutional minimum[,] . . . (1) suffer[] an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (quotation marks omitted)). Put differently, our standing inquiry precedes our merits analysis and “focuses on whether the plaintiff is the proper party to bring [the] suit.”2 Raines, 521 U.S. at 818.
Raines is
This case is really no different from Raines. The Members were not singled out—their alleged injury is shared by the 320 members of the Congress who did not join the lawsuit—and their claim is based entirely on the loss of political power. See Second Amended Complaint at ¶ 5, Blumenthal v. Trump, No. 17-1154 (D.D.C. June 26, 2019), ECF No. 83 (“Defendant has denied Plaintiffs the opportunity to give or withhold their ‘Consent’ to his acceptance of individual emoluments and has injured them in their roles as members of Congress.“). We can, therefore, resolve this case by simply applying Raines. That is, we need not—and do not—consider whether or how Raines applies elsewhere in order to determine that it plainly applies here. See Cohen v. Bd. of Trs. of the Univ. of the Dist. of Columbia, 819 F.3d 476, 485 (D.C. Cir. 2016) (The “cardinal principle of judicial restraint” is “if it is not necessary to decide more, it is necessary not to decide more.” (quoting PDK Labs, Inc. v. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment))).
The Supreme Court‘s recent summary reading of Raines that “individual members” of the Congress “lack standing to assert the institutional interests of a legislature” in the same way “a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole,” Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953-54 (2019), puts paid to any doubt regarding the Members’ lack of standing. Here, the (individual) Members concededly seek to do precisely what Bethune-Hill forbids. See Appellees’ Br. at 12 (asserting Members’ entitlement “to vote on whether to consent to an official‘s acceptance of a foreign emolument before he accepts it . . . is not a private right enjoyed in [his] personal capacity, but rather a prerogative of his office.“).
The district court erred in holding that the Members suffered an injury based on “[t]he President . . . depriving [them] of the opportunity to give or withhold their consent [to foreign emoluments], thereby injuring them in their roles as members of Congress.” Id. at 62 (quotation marks omitted). After Raines and Bethune-Hill, only an institution can assert an institutional injury provided the injury is not “wholly abstract and widely dispersed.” Raines, 521 U.S. at 829.3
The district court misread Raines in declaring that ”Raines teaches that it is not necessary for an institutional claim to be brought by or on behalf of the institution.” Blumenthal, 335 F. Supp. 3d at 58 (emphasis added). Its confusion may be partially due to timing—the district court ruled before Bethune-Hill, which was decided the following year.
Our standing inquiry is “especially rigorous” in a case like this, where “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; see also Ariz. State Legislature v. Ariz. Indep. Redistricting Comm‘n, 135 S. Ct. 2652, 2665 n.12 (2015) (“[S]uit between Congress and the President would raise separation-of-powers concerns absent” in litigation brought by state legislature). Here, regardless of rigor, our conclusion is straightforward because the Members—29 Senators and 186 Members of the House of Representatives—do not constitute a majority of either body and are, therefore, powerless to approve or deny the President‘s acceptance of foreign emoluments. See United States v. Ballin, 144 U.S. 1, 7 (1892) (“The two houses of [C]ongress are legislative bodies representing larger constituencies. Power is not vested in any one individual, but in the aggregate of the members who compose the body[.]“). For standing, the Members’ inability to act determinatively is important, see Raines, 521 U.S. at 829, and, conversely, the size of their cohort is not—so long as it is too small to act. That is, we assess this complaint—filed by 215 Members—no differently from our assessment of a complaint filed by a single Member.4
Because Raines and Bethune-Hill control this case, we begin and end our analysis with them.5
The Members can, and likely will, continue to use their weighty voices to make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit. But we will not—indeed we cannot—participate in this debate. The Constitution permits the Judiciary to speak only in the context of an
Because the district court bifurcated the motion to dismiss proceedings, two of its judgments are before us on appeal. With regard to the first, in which the district court held that the Members have standing, Blumenthal, 335 F. Supp. 3d 45, we reverse and remand with instructions to dismiss the complaint. The second, in which the district court held that the Members have a cause of action and have stated a claim, Blumenthal, 373 F. Supp. 3d 191, is vacated as moot.
So ordered.