Amicus Curiae Brief — Richard Blumenthal, et al., Petitioners v. Donald J. Trump, President of the United States

NO. 20-5

In the Supreme Court of the United States

SENATORS RICHARD BLUMENTHAL, RICHARD J.

DURBIN, PATTY MURRAY, ELIZABETH WARREN, AMY

KLOBUCHAR, BERNARD SANDERS, PATRICK LEAHY,

SHELDON WHITEHOUSE, CHRISTOPHER A. COONS,

MAZIE K. HIRONO, CORY A. BOOKER, KAMALA D.

HARRIS, MICHAEL F. BENNET, MARIA CANTWELL,

BENJAMIN L. CARDIN, TOM CARPER, CATHERINE

CORTEZ MASTO, TAMMY DUCKWORTH, KIRSTEN E.

GILLIBRAND, MARTIN HEINRICH, TIM KAINE, EDWARD

J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, JACK

REED, BRIAN SCHATZ, TOM UDALL, CHRIS VAN

HOLLEN, AND RON WYDEN, Petitioners

v.

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY

AS PRESIDENT OF THE UNITED STATES, Respondent

On Petition for a Writ of Certiorari to the U.S. Court

of Appeals for the District of Columbia Circuit

BRIEF OF HAROLD H. BRUFF, PETER M.

SHANE, PETER L. STRAUSS, AND PAUL R.

VERKUIL AS AMICI CURIAE SUPPORTING

PETITIONERS

KATHARINE M. MAPES *

JEFFREY M. BAYNE

EMMA H. BAST

*Counsel of Record

Spiegel & McDiarmid LLP

1875 Eye Street, NW, Suite 700

Washington, DC 20006

(202) 879-4000

August 10, 2020 katharine.mapes@spiegelmcd.com

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE .......................... 1

SUMMARY OF THE ARGUMENT ........................ 3

ARGUMENT ............................................................. 4

I. AT STAKE IS THE INTEGRITY OF THE

FOREIGN EMOLUMENTS CLAUSE, ONE

OF CONSTITUTION’S CRITICAL CHECKS

AGAINST CORRUPTION. ................................ 4

A. The Foreign Emoluments Clause reflects

the framers’ grave concerns about

the risk of corruption and foreign

influence. ....................................................... 5

B. The congressional consent element of the

foreign Emoluments Clause is a

deliberate and critical separation

of powers mechanism to prevent

corruption ...................................................... 8

C. Requiring Congress to affirmatively act

to prevent the acceptance of foreign

emoluments is fundamentally contrary

to the Constitution. .................................... 12

II. ADJUDICATION OF THIS IMPORTANT

CASE IS CONSISTENT WITH the

SEPARATION OF POWERS. ......................... 14

A. This case is well within both the

competence and authority of the

judiciary. ...................................................... 14

B. This case represents a valid exercise of

judicial power against the President. .... 18

CONCLUSION........................................................ 20

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Baker v. Carr,

369 U.S. 186 (1962) ................................ 17

Blumenthal v. Trump,

949 F.3d 14 (D.C. Cir. 2020) .................. 12

Bowsher v. Synar,

478 U.S. 714 (1986) ............................ 3, 15

Buckley v. Valeo,

424 U.S. 1 (1976)...........................3, 15, 17

Clinton v. Jones,

520 U.S. 681 (1997) ................................ 19

Dep’t of Revenue of Wash. v. Ass’n of Wash.

Stevedoring Cos.,

435 U.S. 734 (1978) ................................ 16

Dep’t of Revenue v. James B. Beam Distilling Co.,

377 U.S. 341 (1964) ................................ 16

Humphrey’s Ex’r v. United States,

295 U.S. 602 (1935) ................................ 16

Immigration & Naturalization Serv. v. Chadha,

462 U.S. 919 (1983) .........................4, 5, 15

La. Land & Expl. Co. v. Pilot Petroleum Corp.,

900 F.2d 816 (5th Cir. 1990) .................. 16

Loving v. United States,

517 U.S. 748 (1996) ................................ 19

Marbury v. Madison,

5 U.S. 137 (1803)...................................... 3

iii

Michelin Tire Corp. v. Wages,

423 U.S. 276 (1976) ................................ 16

Morrison v. Olson,

487 U.S. 654 (1988) ................................ 15

Myers v. United States,

272 U.S. 52 (1926) .................................. 15

Nat’l Labor Relations Bd. v. Noel Canning,

573 U.S. 513 (2014) ................................ 14

Nat’l Treasury Emps. Union v. Nixon,

492 F.2d 587 (D.C. Cir. 1974) ................ 13

Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977) ................................ 16

Polar Tankers, Inc. v. City of Valdez,

557 U.S. 1 (2009).................................... 16

Pub. Citizen v. Dep’t of Justice,

491 U.S. 440 (1989) .................................. 3

Raines v. Byrd,

521 U.S. 811 (1997) ................................ 14

Seila Law LLC v. Consumer Fin. Prot. Bureau,

140 S. Ct. 2183 (2020) ............................ 15

Swan v. Clinton,

100 F.3d 973 (D.C. Cir. 1996) ................ 18

United States v. Am. Tel. & Tel. Co.,

551 F.2d 384 (D.C. Cir. 1976) ................ 17

United States v. Nixon,

418 U.S. 683 (1974) ........................... 14-16

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ................................ 15

iv

U.S. CONSTITUTION

U.S. Const. art. I, § 2, cl. 5 ............................... 13

U.S. Const. art. I, § 3, cl. 6 ............................... 13

U.S. Const. art. I, § 9, cl. 8 ................................. 8

COURT RULES

Rule 37.2(a) ........................................................ 1

Rule 37.6 ............................................................. 1

OTHER AUTHORITIES

1 The Records of the Federal Convention of 1787,

(Max Farrand ed., 1911) .......................... 6

2 The Records of the Federal Convention of 1787

(Max Farrand ed., 1911) .......................... 7

3 The Debates in the Several State Conventions on

the Adoption of the Federal Constitution

465 (Jonathan Elliot ed., 1827) ............... 7

4 John Bassett Moore, A Digest of International

Law 579 (1906) ........................................ 8

5 Annals of Cong. 1585 (1798)

(Statement of Rep. Otis) .................... 9, 10

Applicability of Emoluments Clause to Emp’t of Gov’t

Emp. by Foreign Pub. Univs., 18 Op.

O.L.C. 13 (1994) ....................................... 8

Applicability of the Emoluments Clause and the

Foreign Gifts and Decorations Act to the

President’s Receipt of the Nobel Peace Prize,

33 Op. O.L.C. 1 (Dec. 7, 2009) ............... 10

Articles of Confederation of 1781, art. VI .......... 7

James D. Savage, Corruption and Virtue at the

Constitutional Convention, 56 J. Pol. 174

(1994) ....................................................... 5

v

Mark Landler, Lara Jakes & Maggie Haberman

Trump’s Request of an Ambassador: Get the

British Open for Me, N.Y. Times

(July 21, 2020),

https://www.nytimes.com/2020/07/21/world/eur

ope/trump-british-open.html ................. 11

Memorandum for H. Gerald Staub, Office of Chief

Couns., NASA from Samuel A. Alito Jr.,

Deputy Assistant Att’y Gen., Emoluments

Clause Questions Raised by NASA Scientist’s

Proposed Consulting Arrangement with the

University of New South Wales, 1986 OLC

Lexis 67 (May 23, 1986) ........................... 8

Proposal That the President Accept Honorary Irish

Citizenship, 1 Op. O.L.C. Supp. 278

(1963) ..................................................... 10

The Federalist Nos. 2-5 (John Jay) .................... 6

The Federalist No. 51 (James Madison) ............ 9

The Federalist No. 68 (Alexander Hamilton) .... 6

Zephyr Teachout, Gifts, Offices, and Corruption,

107 Nw. Univ. L. Rev. Colloquy 30

(2012) ..............................................5, 7, 10

1

INTERESTS OF AMICI CURIAE 1

Amici curiae—Harold H. Bruff, Peter M.

Shane, Peter L. Strauss, and Paul R. Verkuil—are

distinguished professors of administrative and

constitutional law who are experts in separation of

powers issues. They have a strong interest in

ensuring that the separation of powers principles

and the checks and balances found in the

Constitution are upheld. They thus file this amici

brief to urge the Court to grant the petition for a writ

of certiorari.

Harold H. Bruff is the Rosenbaum Professor

of Law Emeritus at the University of Colorado School

of Law, where he was Dean from 1996-2003. His

numerous

writings

on

constitutional

and

administrative law include Balance of Forces:

Separation of Powers Law in the Administrative

State (Carolina Academic Press 2006), and

Untrodden Ground: How Presidents Interpret the

Constitution (University of Chicago Press 2015),

examining how presidents have interpreted their

constitutional powers. He has served in the Office of

Legal Counsel in the U.S. Department of Justice and

has testified before Congress many times on public

law issues.

Pursuant to Rule 37.2(a), counsel for all parties received

timely notice of amici’s intent to file this brief, and all parties

consented in writing. Pursuant to Rule 37.6, counsel for amici

certify no counsel for any party authored this brief in whole or

in part, and no person or entity other than the amici or their

counsel made a monetary contribution intended to fund the

brief’s preparation or submission.

1

2

Peter M. Shane is the Jacob E. Davis Chair

and Jacob E. Davis II in Law at the Ohio State

University’s Moritz College of Law. Among his many

writings, he has co-authored or edited eight books,

including Separation of Powers Law: Cases and

Materials (Carolina Academic Press, 4th ed. 2018)

and Madison’s Nightmare: How Executive Power

Threatens American Democracy (University of

Chicago Press 2009), and he is a former public

member of the Administrative Conference of the

United States (“ACUS”). Before entering full-time

teaching in 1981, Professor Shane served as an

attorney-adviser in the Office of Legal Counsel in the

U.S. Department of Justice and as an assistant

general counsel in the Office of Management and

Budget.

Peter L. Strauss is the Betts Professor of

Law Emeritus at Columbia Law School. His many

influential articles bearing on separation of powers

issues include Overseer or “The Decider”?: The

President in Administrative Law, 75 Geo. Wash. L.

Rev. 696 (2007), and The Place of Agencies in

Government: Separation of Powers and the Fourth

Branch, 84 Colum. L. Rev. 573 (1984). An editor of

Gellhorn and Byse’s Administrative Law: Cases and

Comments since its Seventh Edition and author of

Administrative Justice in the United States (1989,

2002, 2016), he served as the first general counsel to

the U.S. Nuclear Regulatory Commission while on

leave from Columbia, and as an attorney in the

Office of the Solicitor General before his joining the

Columbia faculty in 1971. Professor Strauss was

elected in 2010 to the American Academy of Arts &

Sciences.

3

Paul R. Verkuil is a Senior Fellow at ACUS

and President Emeritus of the College of William &

Mary. He is the last Senate-confirmed Chairman of

ACUS (2010-2015). ACUS is the federal agency

devoted to matters of administrative procedure and

policy that has long produced recommendations of

value to the judiciary, Congress, and the executive.

Mr. Verkuil is a well-known administrative law

scholar and the co-author of the treatise

Administrative Law and Process (Foundation Press,

6th ed. 2014). He has served as special master to the

U.S. Supreme Court in the original jurisdiction case

of New Jersey v. New York, 523 U.S. 767 (1998).

SUMMARY OF THE ARGUMENT

The Constitution does not provide merely for

an “abstract generalization” of the separation of

powers. Buckley v. Valeo, 424 U.S. 1, 124 (1976). It

instead establishes a structure of government

consisting of specific processes that enable concrete

checks and balances. These elements reflect the

founders’ belief that “checks and balances were the

foundation of a structure of government that would

protect liberty.” Bowsher v. Synar, 478 U.S. 714, 722

(1986). And in that structure, it is the fundamental

role of the courts “to say what the law is,” Marbury v.

Madison, 5 U.S. 137, 177 (1803), and to safeguard

the “enduring structure” of the Constitution, Public

Citizen v. Department of Justice, 491 U.S. 440, 468

(1989) (Kennedy, J., concurring). At issue in this case

is one of the Constitution’s critical checks and

balances: the Foreign Emoluments Clause.

This Clause reflects the founders’ profound

concerns about foreign influence and corruption. To

address these fears, the founders imposed an

4

absolute duty on all federal officials not to accept

foreign emoluments of any kind, and allocated to

Congress the sole authority to provide exceptions to

this absolute prohibition.

This case raises exceptionally important

issues regarding the integrity of the Foreign

Emoluments Clause. Requiring—as the lower court’s

ruling does—that Congress or a majority of its

Members take affirmative action to prevent the

President from accepting foreign emoluments would

turn the Clause on its head. Such an outcome would

undermine the President’s duty to comply with his

Constitutional obligations, strip Petitioners of their

right to vote on the acceptance of specific

emoluments, and abrogate the judiciary’s duty to

safeguard the structure of the Constitution. This

Court should not allow the President to deprive

members of Congress of their constitutional duty to

guard against foreign influence and corruption by

selectively consenting to the acceptance of only those

foreign emoluments they deem appropriate. The

petition for a writ of certiorari should be granted.

ARGUMENT

I. AT STAKE IS THE INTEGRITY OF THE

FOREIGN EMOLUMENTS CLAUSE, ONE

OF CONSTITUTION’S CRITICAL CHECKS

AGAINST CORRUPTION.

At issue in this case is one of the

Constitution’s critical checks and balances: the

Foreign Emoluments Clause. “The[] provisions of

Art. I,” which include the Foreign Emoluments

Clause, “are integral parts of the constitutional

design for the separation of powers.” Immigration &

Naturalization Serv. v. Chadha, 462 U.S. 919, 946

5

(1983). As this Court explained in Chadha, “‘[t]he

principle of separation of powers was not simply an

abstract generalization in the minds of the Framers:

it was woven into the documents that they drafted in

Philadelphia in the summer of 1787.’” Id. (quoting

Buckley v. Valeo, 424 U.S. at 124). So too was a

commitment to using the Constitution’s structures to

prevent corruption. See Zephyr Teachout, Gifts,

Offices, and Corruption, 107 Nw. Univ. L. Rev.

Colloquy 30, 30 (2012) (noting the Constitution’s

“structural commitment to fighting corruption”).

Indeed, the Foreign Emoluments Clause relies on

separation of powers as a means of preventing

corruption in the Offices of the United States.

A. The Foreign Emoluments Clause reflects

the framers’ grave concerns about the

risk of corruption and foreign influence.

Among

the

Constitutional

Convention

delegates, “there was near unanimous agreement

that corruption was to be avoided, that its presence

in the political system produced a degenerative

effect, and that the new Constitution was designed in

part to insulate the political system from corruption.”

James D. Savage, Corruption and Virtue at the

Constitutional Convention, 56 J. Pol. 174, 181 (1994).

According to James Madison’s notes on the

convention, the term “corruption” was mentioned by

fifteen delegates “no less than 54 times” and “[e]ighty

percent of these references were uttered by seven of

the most important delegates, including Madison,

Morris, Mason, and Wilson,” id. at 177 (referencing

James Madison, Notes of Debates in the Federal

Convention of 1787 Reported by James Madison

(1987)), with Mr. Mason arguing that “if we do not

6

provide against corruption, our government will soon

be at an end.” 1 The Records of the Federal

Convention of 1787, at 392 (Max Farrand ed., 1911).

The Office of the President was not considered

immune from this danger. As Alexander Hamilton

argued in The Federalist No. 68 regarding the “mode

of electing the President”:

[n]othing was more to be desired

than

that

every

practicable

obstacle should be opposed to

cabal, intrigue, and corruption.

These most deadly adversaries of

republican

government

might

naturally have been expected to

make their approaches from more

than one quarter, but chiefly from

the desire in foreign powers to gain

an improper ascendant in our

councils.

The Federalist No. 68 (Alexander Hamilton).

Anti-corruption

concerns

were likewise

prominent in the public advocacy efforts to garner

support for the Constitution’s ratification. Four of

the first five Federalist Papers addressed the

“Dangers from Foreign Force and Influence.” The

Federalist Nos. 2-5 (John Jay). The concerns over

whether a foreign nation might provoke or influence

the newly-formed union thus extended to all corners

of the country, and the founders explicitly sought to

address this issue. The Foreign Emoluments Clause

was designed as one structural safeguard against

these concerns. As Governor Randolph observed

during the Virginia Ratification Convention:

7

All men have a natural inherent

right of receiving emoluments from

any one, unless they be restrained

by

the

regulations

of

the

community . . . . It was thought

proper, in order to exclude

corruption and foreign influence, to

prohibit any one in office from

receiving

or

holding

any

emoluments from foreign states.

3 The Debates in the Several State Conventions on

the Adoption of the Federal Constitution 465

(Jonathan Elliot ed., 1827) (emphasis omitted). The

Clause was inserted into the Constitution by a

motion of Charles Pinckney, who “urged the

necessity of preserving foreign Ministers & other

officers of the U. S. independent of external

influence.” 2 The Records of the Federal Convention

of 1787, at 389 (Max Farrand ed., 1911). The

measure passed unanimously. Id. 2

2 The Clause in the Constitution mirrors a similar clause

contained in the Articles of Confederation, the country’s

original governing document. Under the Articles of

Confederation of 1781, art. VI, the clause stated that “nor shall

any person holding any office of profit or trust under the United

States, or any of them, accept of any present, emolument, office

or title of any kind whatever, from any king, prince, or foreign

state.” That version of the clause lacked an express reference to

the consent of Congress; however, even under the Articles of

Confederation, the accepted interpretation of the clause allowed

for congressional consent. See Teachout, supra, at 36.

8

B. The congressional consent element of the

foreign Emoluments Clause is a

deliberate and critical separation of

powers mechanism to prevent corruption

The Constitution could not be clearer:

Congress has “exclusive authority to permit the

acceptance of presents from foreign governments by

persons holding offices under the United States.” 4

John Bassett Moore, A Digest of International Law

579 (1906) (quoting Letter from James Madison,

Sec’y of State, to David Humphreys (Jan. 5, 1803))

(internal quotations omitted). It is mandatory that

any “Person holding any Office of Profit or Trust,”

including the President, seek and obtain

congressional consent in order to keep “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; see also Applicability of Emoluments

Clause to Emp’t of Gov’t Emp. by Foreign Pub.

Univs., 18 Op. O.L.C. 13, 17-18 (1994) (“The decision

whether to permit exceptions that qualify for the

Clause’s absolute prohibition or that temper any

harshness it may cause is textually committed to

Congress . . . .”) (emphasis in original). As nowSupreme Court Justice Alito observed while he was

Deputy Assistant Attorney General at the Office of

Legal Counsel of the Department of Justice (“OLC”),

“the Emoluments Clause is ‘directed against every

kind of influence by foreign governments upon

officers of the United States,’ (24 Op. A.G. 116, 117

(1902)), unless the payment has been expressly

consented to by Congress.” Memorandum for H.

Gerald Staub, Office of Chief Couns., NASA, from

Samuel A. Alito Jr., Deputy Assistant Att’y Gen.,

Emoluments Clause Questions Raised by NASA

9

Scientist’s Proposed Consulting Arrangement with

the University of New South Wales, 1986 OLC Lexis

67, at *2 (May 23, 1986).

By allocating to Congress the broad power to

determine whether to grant an exception to this

prohibition, the framers of the Constitution imbued

the Clause with two related purposes. It serves first

to guard against corruption and foreign influence,

and second to establish a congressional check on

persons holding offices of profit or trust under the

United States. The Foreign Emoluments Clause, like

other provisions of the Constitution, protects

“against a gradual concentration of the several

powers” and “control[s] the abuses of government” by

having one branch serve as a constitutional check

against members of another branch. The Federalist

No. 51 (James Madison). Critically, rather than

requiring Congress to act as check against an official

after-the-fact, the Clause places the burden on the

official to obtain the consent of Congress before

accepting any foreign emolument.

During the first recorded circumstance of

Congress considering application of the Clause,

Representative Harrison Gray Otis explained that:

[w]hen every present to be received

must be laid before Congress, no

fear need be apprehended from the

effects of any such presents. For, it

must be presumed, that the

gentleman

who

makes

the

application has done his duty, as

he, at the moment he makes the

application, comes before his

country to be judged.

10

5 Annals of Cong. 1585 (1798) (Statement of Rep.

Otis).

Ultimately, as Professor Zephyr Teachout

explained:

Congressional acquiescence is not a

minor check. It takes power from

the executive branch and gives

Congress oversight responsibility

to make sure that officers . . . are

not being seduced from their

obligations to the country. The

congressional requirement leads to

a

radical

transparency

and

interrogation that could chill quiet

transfers of wealth for affection.

Teachout, supra, at 36.

Indeed, modern Presidents have recognized

that the Foreign Emoluments Clause imposes an ex

ante prohibition on accepting foreign emoluments

absent the consent of Congress. President Kennedy

sought an opinion from the OLC as to whether the

offer of an “honorary Irish citizenship” would be

subject to the Foreign Emoluments Clause. Proposal

That the President Accept Honorary Irish

Citizenship, 1 Op. O.L.C. Supp. 278 (1963) (holding

that Foreign Emoluments Clause applies to offer of

honorary citizenship to President Kennedy).

Similarly, President Obama sought an OLC opinion

as to whether accepting the Nobel Peace Price would

conflict with the Foreign Emoluments Clause.

Applicability of the Emoluments Clause and the

Foreign Gifts and Decorations Act to the President’s

Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1

(Dec. 7, 2009) (determining that the Nobel

11

Committee that awards the prize is not a “King,

Prince, or foreign State,” and thus the prize does not

fall under the auspices of the Foreign Emoluments

Clause). In contrast, President Trump has sought

neither legal opinion as to whether specific

emoluments fall within the scope of the Foreign

Emoluments Clause nor the consent of Congress

before accepting specific emoluments. Instead, there

are concerns that he has tasked at least one U.S.

ambassador to actively solicit foreign emoluments on

his behalf.3

If true, this would constitute a serious

dereliction of duty of precisely the sort the Foreign

Emoluments Clause was meant to prevent. To the

extent that members of Congress did not have a

chance to weigh in on this—and similar

emoluments—they have been denied the right to

fulfill an oversight role given to them by the

Constitution. There is no question this raises

concerns of great national importance.

3 See, e.g., Mark Landler, Lara Jakes & Maggie Haberman,

Trump’s Request of an Ambassador: Get the British Open for

Me, N.Y. Times (July 21, 2020),

https://www.nytimes.com/2020/07/21/world/europe/trumpbritish-open.html (reporting that U.S. Ambassador to Britain

“told multiple colleagues in February 2018 that President

Trump had asked him to see if the British government could

help steer the world-famous and lucrative British Open golf

tournament to the Trump Turnberry resort in Scotland,” and

that “[e]xperts on government ethics pointed to one potential

violation of the emoluments clause that still may have been

triggered by the president’s actions: The British or Scottish

governments would most likely have to pay for security at the

tournament, an event that would profit Mr. Trump”).

12

C. Requiring Congress to affirmatively act

to prevent the acceptance of foreign

emoluments is fundamentally contrary to

the Constitution.

The decision below was no doubt correct in

observing that “[t]he 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.”

Blumenthal v. Trump, 949 F.3d 14, 20 (D.C. Cir.

2020). Those general rights, however, will not

vindicate the Member’s specific rights under the

Foreign Emoluments Clause.

In any routine political disagreement,

Congress has means of pursuing its interests. It can

withhold funds from the Executive, decline to enact

legislation that the Executive desires, or enact and

override vetoes of legislation that the Executive

disfavors—including on the subject of emoluments.

The Constitution, however, does not treat foreign

emoluments as a routine political disagreement. Had

the founders intended that Congress dissuade

officials from accepting foreign emoluments through

appeals to the public, by withholding funds sought by

the official in question, or even via individual post

hoc pieces of legislation, there would be no need to

include the Foreign Emoluments Clause in the

Constitution in the first place. Instead, they created

the Clause with a very particular structure—it is

Officers of the United States that must take an

affirmative action (i.e., going before Congress) in

order to accept an emolument. The opinion below

negates that requirement entirely.

13

Nor does the looming specter of impeachment

as a means to enforce the Foreign Emoluments

Clause lessen the importance of this case. Although

impeachment is a mechanism clearly provided for in

the Constitution, any decision that renders

impeachment the sole remedy for a violation of law

would leave Congress with no remedy save a

“nuclear bomb.” Nat’l Treasury Emps. Union v.

Nixon, 492 F.2d 587, 615 (D.C. Cir. 1974). 4 The D.C.

Circuit has cautioned that “the Constitution should

not be construed so as to paint this nation into a

corner which leaves available only the use of the

impeachment process to enforce the performance of a

perfunctory duty by the President.” Id. Although the

House recently voted to impeach President Trump on

two articles, which the Senate subsequently voted to

acquit, neither of these articles was based on

violation of the Foreign Emoluments Clause. Those

proceedings are thus not relevant to the rights

Petitioners seek to vindicate.

Here, the President has an absolute duty

under the Constitution to not accept foreign

emoluments of any kind without the consent of

Congress. Requiring that a majority of Congress act

to disapprove or prevent the acceptance of

emoluments is directly contrary to the clear

4 Moreover, the high standard the Constitution requires for

impeachment exceeds its specific requirements regarding

foreign emoluments. No action is required by Congress to

prevent the acceptance of foreign emoluments, whereas

impeachment requires “concurrence of two thirds of the

Members [of the Senate] present” (in addition to prior action by

the House of Representative). U.S. Const. art. I, § 2, cl. 5; id.

art. I, § 3, cl. 6.

14

structure of the Foreign Emoluments Clause. This

Court should grant the petition for a writ of

certiorari to address this profoundly important

constitutional issue.

II. ADJUDICATION OF THIS IMPORTANT

CASE IS CONSISTENT WITH THE

SEPARATION OF POWERS.

While suits by federal legislators raise

“separation-of-powers concerns,” Raines v. Byrd, 521

U.S. 811, 824 n.8 (1997), this Court has never held

that those concerns foreclose members of Congress

from seeking judicial relief. Given the exceptionally

important issues raised in this case, separation of

powers concerns weigh in favor of granting the

petition for a writ of certiorari, not against it.

A. This case is well within both the

competence and authority of the

judiciary.

That this case implicates the separation of

powers—in that it implicates a clause of the

Constitution requiring congressional consent to the

otherwise prohibited conduct of a member of the

executive branch—does not remove it from the realm

of justiciability. It is the “‘duty of the judicial

department’—in a separation-of-powers case as in

any other—‘to say what the law is.’” Nat’l Labor

Relations Bd. v. Noel Canning, 573 U.S. 513, 525

(2014) (quoting Marbury v. Madison, 5 U.S. at 177).

To reach “[a]ny other conclusion would be contrary to

the basic concept of separation of powers and the

checks and balances that flow from the scheme of a

tripartite government.” United States v. Nixon, 418

U.S. 683, 704 (1974) (citing The Federalist No. 47, at

313 (James Madison) (Sherman Mittell ed. 1938)). As

15

such, in United States v. Nixon, this Court concluded

that it is the province of the judiciary to “say what

the law is” with respect to the claim of executive

privilege presented in that case. Id. at 705 (quoting

Marbury v. Madison, 5 U.S. at 177) (internal

quotations omitted). Here, too, it is the province of

the judiciary to say what the law is with respect to

the Foreign Emoluments Clause.

Courts regularly address disputes that focus

on the constitutional boundary between the

legislative and executive branches. In Morrison v.

Olson, 487 U.S. 654 (1988), the Court considered

justiciable the question of whether Congress could

limit an executive officer’s removal by the President

for cause. In Bowsher, 478 U.S. at 726, the Court

concluded that “Congress cannot reserve for itself the

power of removal of an [executive] officer charged

with the execution of the laws except by

impeachment.” In Myers v. United States, 272 U.S.

52 (1926), the Court considered whether Congress

could reserve the right to consent to removal of a

postmaster during his term, and in Buckley whether

Congress could appoint members of the Federal

Election Commission. And just recently in Seila Law

LLC v. Consumer Financial Protection Bureau, 140

S. Ct. 2183 (2020), the Court held that Congress

cannot establish an independent regulatory agency

led by a single person removable by the President

only for good cause. See also Chadha, 462 U.S. 919

(striking down a one-house legislative veto);

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) (considering whether nationalization of

the steel mills constituted law making); Humphrey’s

Ex’r v. United States, 295 U.S. 602 (1935)

16

(considering for-cause restrictions on removal of

Federal Trade Commissioners). 5

Here, the President has a duty not to accept

foreign emoluments absent the consent of Congress.

It is the duty of members of the executive branch, in

the first instance, to ensure that they do not violate

applicable constitutional prohibitions. This duty,

however, does not mean that such members operate

free of any check from coordinate branches.

This Court has “squarely rejected the

argument that the Constitution contemplates a

complete division of authority between the three

branches.” Nixon v. Adm’r of Gen. Servs., 433 U.S.

425, 443 (1977). That is the natural result of the

interdependence—expressed in part as a system of

checks and balances—of the three branches of

government. As Justice Burger stated in United

States v. Nixon, 418 U.S. at 707, “[i]n designing the

structure of our Government and dividing and

allocating the sovereign power among three co-equal

branches, the Framers of the Constitution sought to

provide a comprehensive system, but the separate

powers were not intended to operate with absolute

5 The Import/Export Clause and the Tonnage Clause, both of

which lay prohibitions on the actions of states that have not

obtained such consent, are regularly litigated and certainly

found justiciable—indeed, their justiciability appears to be

unchallenged. See, e.g., Polar Tankers, Inc. v. City of Valdez,

557 U.S. 1 (2009); Dep’t of Revenue of Wash. v. Ass’n of Wash.

Stevedoring Cos., 435 U.S. 734 (1978); Michelin Tire Corp. v.

Wages, 423 U.S. 276 (1976); Dep’t of Revenue v. James B. Beam

Distilling Co., 377 U.S. 341 (1964); La. Land & Expl. Co. v.

Pilot Petroleum Corp., 900 F.2d 816 (5th Cir. 1990).

17

independence.” See Buckley, 424 U.S. at 121

(explaining that the founders did not, in creating the

Constitution, provide for the “hermetic sealing off of

the three branches of Government from one

another”). It is the province and duty of the courts to

say what the law is—and the Foreign Emoluments

Clause does not constitute an exception to that duty.

See Baker v. Carr, 369 U.S. 186, 211 (1962)

(“Deciding whether a matter has in any measure

been committed by the Constitution to another

branch of government, or whether the action of that

branch exceeds whatever authority has been

committed, is itself a delicate exercise in

constitutional interpretation, and is a responsibility

of this Court as ultimate interpreter of the

Constitution.”). This case presents a clear legal

question—whether the President has violated the

Foreign Emoluments Clause—that the judiciary is

both authorized and well-suited to handle.

The “mere fact that there is a conflict between

the legislative and executive branches” has never

been sufficient to remove a case from justiciability.

United States v. Am. Tel. & Tel. Co., 551 F.2d 384,

390 (D.C. Cir. 1976). And indeed, here there is not

even a conflict. This case does not interfere with

Congress’s internal affairs, and, as discussed below,

adjudicating this case does not interfere with the

President’s constitutional duty to ensure that the

laws are faithfully executed. To the contrary,

allowing this case to proceed ensures that the

President’s judgment in undertaking that duty is not

compromised

through

violation

of

another

constitutional mandate. And only judicial resolution

of this case will ensure that Congress is asked for its

consent, as the Constitution requires. Doing so will

18

effectuate the checks and balances established by the

Constitution.

B. This case represents a valid exercise of

judicial power against the President.

That this action is brought against the

President only heightens the need for this Court to

grant the petition for a writ of certiorari and

preserve the specific checks and balances in the

Constitution. The concerns regarding foreign

influence and corruption that underlie the Foreign

Emoluments Clause are of even greater importance

when applied to the President as compared to lower

officials. Moreover, while seeking injunctive or

declaratory relief against the President may be

unusual, they are not prohibited by the Constitution.

Indeed, the Members of Congress who brought

this case lack alternative means to press their

Foreign Emoluments Clause claims in court. In

contrast, “[i]n most cases, any conflict between the

desire to avoid confronting the elected head of a

coequal branch of government and to ensure the rule

of law can be successfully bypassed, because the

injury at issue can be rectified by injunctive relief

against subordinate officials.” Swan v. Clinton, 100

F.3d 973, 978 (D.C. Cir. 1996) (citing Franklin v.

Massachusetts, 505 U.S. 788, 803 (1992); Chamber of

Commerce of U.S. v. Reich, 74 F.3d 1322, 1328, 1331

n.4 (D.C. Cir. 1996); Harlow v. Fitzgerald, 457 U.S.

800, 811 n.17 (1982)). This is not like “most cases.”

Here, relief cannot be obtained by an injunction

against subordinate officials, and declaratory or

injunctive relief against the President is the only

way to ensure the rule of law. President Trump

himself has refused to disclose any information

19

surrounding his private businesses to Congress, and

has refused to ask for consent of acceptance of

foreign emoluments.

Finally, although this Court has noted that

“the separation-of-powers doctrine requires that a

branch not impair another in the performance of its

constitutional duties,” Loving v. United States, 517

U.S. 748, 757 (1996), no risk of such impairment is

present here. This case does not involve the exclusive

constitutional duties of the executive branch; it

involves a mandatory constitutional duty imposed on

all officeholders, whether in the executive or another

branch, that the founders included in the

Constitution to prevent undue foreign influence. Far

from distracting the President from his official

duties, “any Presidential time spent dealing with, or

action taken in response to” a case clarifying the

scope of the Foreign Emoluments Clause is actually

“part of a President’s official duties.” See Clinton v.

Jones, 520 U.S. 681, 718 (1997) (Breyer, J.,

concurring). “Insofar as a court orders a President, in

any [separation of powers] proceeding, to act or to

refrain from action, it defines, or determines, or

clarifies the legal scope of an official duty.” Id.

Beyond

imposing

an

independent

constitutional duty, the Foreign Emoluments Clause

is a critical check on the President’s Article II

powers. It protects against foreign influence over and

corruption of the President, as with inferior officers.

Compliance with the Foreign Emoluments Clause

bolsters the resistance of the executive branch to

corruption and foreign influence and thus enhances,

rather than interferes with, his ability to take care

that the laws are faithfully executed. By adjudicating

20

this case, this Court would effectuate one of the

checks and balances found in the Constitution, and

thus be acting precisely in line with how the

separation of powers was intended to function.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Katharine M. Mapes*

Jeffrey M. Bayne

Emma H. Bast

*Counsel of Record

Spiegel & McDiarmid LLP

1875 Eye Street, NW, Suite 700

Washington, DC 20006

(202) 879-4000

katherine.mapes@spiegelmcd.com