a may please the court members of congress seek to assert an implied cause of action to enforce the foreign of monuments clause against the president of the united states that extraordinary suit should dismissed because it suffers from multiple fundamental flaws i'd like to begin this morning with article three stating because the members have made several concessions that i submit effectively can see themselves out of court st the members conceded that they cannot assert here any personal injury to their private rights nd they can see that if they can assert any institutional injuries to their legislative progressives they can do so only if they satisfy the two part test for them this court decision in campbell versus clinton that requires them to show both vote both occasion and the absence of legislative remedy i think that that by itself is going to be dispositive in this case because they can't meet either of the two prongs under campbell itself and moreover this court should not apply campbell and allow federal legislators and indeed a minority of federal legislators to assert article three standing for the st time since emphasize the default rule under the foreign emoluments clause is that the exceptions of prohibited emoluments is barred absent congressional consent so they don't need notification on less their injuries that they wanted to actually just stick with the question the question is if your view is that the members like standing and there's no cause of action and judge griffith has well then what's the remedy for animal human clause violation presumably the framers who were worried about foreign interference in the government couldn't have imagined at least i don't think that they added a clause that couldn't be enforced in some way so in your view how can congress protect its interests in the same exact way that this court identified in campbell versus clinton that the congress could identify its interests there it was the exact same argument that the members of congress filed suit saying that the president was in gauged in armed hostilities and under both the the war powers act and the declare war a clause they said that he could not engage in those facilities without st having obtained consent from congress and what this court said i'll skip over the vote obligation pointed pressure question directly what this court is that congress has remedies in that circumstance st and foremost of course they could have passed a law banning the president from engaging that conduct so to hear congress has wide power a criminal conviction on what contact so in this case already regulates that contact and you're now saying congress has to do something more than the constitution that's the exact same argument that was made and rejected in campbell against the plain plaintiffs of the statute here in the re banning him from the kitchen the conduct so to hear congress has the authority under both the ability to regulate commerce with foreign nations and the necessary and proper cause to say that for example to be particularly concrete about this they c pass something that's sad no business in which a federal official who's covered by the monuments clause has a financial interest can receive any money from foreign state ok and could these points before us today bring that case to challenge  he refused to do that you know to the president didn't know they could these plaintiffs in this case sued to force him to i would think not because that would just be tools that congress has is the other ability to remove federal officials i'm not going to take a position today as to whether the allegations here would rise to that level that was not present in this case and certainly in campbell for example this court today alleges that was that was it that was there was an argument you refuted or argued against him before right because that's what's going on in our miss arias case right when one of the arguments supporting subpoenaed there is th monmouth's clause issue and well so i would say in addition to the ability to pass legislation which by the way i think should just be sufficient under campbell because it's exactly the same in and there are other remedies for among other things for example congress could use its appropriations power coming about what about the oversight which congress has oversight power respected among its claws you know you know your honor actually i have to say i haven't actually thought very hard about that question in the context of this case i hesitate to give an answer to it but again if i could circle back to what i started with because i think part of the difficulty here is you're asking to try to find what remedies they have without st starting with what is their actual injury because again they have to showboat nullification it's not enough to say that there is some violation alleged violation constitution that they don't have a remedy for that particularly stark here because remember they're only suing over the foreign among scholars they're not showing over the domestic a minus clause that the domestic amalia's clause is an absolute prohibition on the president receiving a molly ivins from either the federal government or any state the reason they're not bringing that claim as other plaintiffs in other cases that is because congress has no role under the domestic among its laws and so they're turning everything on its head because they're saying that they can bring a suit to enforce a qualified probation when they couldn't even bring the suit to enforce an absolute prohibition and i think what that shows you is two things one this focus on whether there is some ready remedy that congress can have is just misguided and to have to focus on whether there is actually both nullification within the meaning of cases like campbell and brains and been through hell and what every one of those cases says is that both the cation is a question about whether there is a dispute about whether the legislatures votes have been there is a question procedurally of what the legislature has done there is those cases are all reject the notion that you would also find vote of occasion now when there's no dispute about what the legislature has done with it with with respect to how the executive has responded in response to intramural dispute with in the legislature as to what they had done had a vote been cast or has it not been cast that's not what's going on here everyone knows that congress has not authorized the president to receive otherwise for him to demands the only question in the case is is the president nevertheless acting lawfully because these aren't actually printed in a moment that he needs consent for that is exactly the nature of the allegations is that there are things taking place that that would make sense doesn't know about that would only make sense if what they were saying is that they want to actually consent to some emoluments if only they knew they would actually vote to approve them but they haven't said that i'd be very surprised if stands up here today and says that the reason they brought the suit is they really want to can set to the president receiving some emoluments but they just don't know does it have to be that could it be they they want to know about it so they can consider it but that's again the default rule is that acceptance of predicaments is not permitted absent congressional consent so if all they're worried about is that there might be a violation they don't have to do anything if they just sit silent as they have there is no consent would understand if their argument is it is your understanding of the foreign clause that congress can also reject them once they are aware of them they don't have to reject them as my point the constitution already rejects that right the constitution already prohibits the acceptance of emoluments absent congressional consent so unless they're going to stand up here and say that what they really want to do is approve them and that's why they're so injured their argument just doesn't make any sense if i could take a step back so i think i've now hit both of the two b s and why they can't even satisfy campbell versus clinton on its own terms they don't have both delegation and they do have legislative remedies but of course to take a step back the supreme court has repeatedly i'm honest both in footnote eight of rain versus the last three or four pages of an of the rain st bird opinion where the court goes on at some length to describe how it there's a long history of intra branch disputes between the executive branch and the legislative branch and they have never been resolved through lawsuits between the branches they have always been resolved only through those disputes and up implicating the right to private parties and private parties have a lawsuit and i think that's very important here that this court should certainly not extend campbell for the  st time since raines allow this sort of interim branch dispute in the face of the unbroken history of not allowing such is the last point that will make it on standing is that's especially true because this is an even congress it's not even a house of congress this is a minority of members of both chambers and we know both from coleman and from within hill that they should not be able if anyone can assert of institutional injury it's gotta be the body that has the institutional right and under the family's cause the only entity that has any right at all here will be congress or the hope certainly not individual members and so underbid through hell and under raines they can sue even if everything else i said thus far you don't agree with and a minimum that's true but if you look at given what you say in your brief even if they did have standing your view is there's no cause of action correct that's true as well your honor and i'm happy to address that  your position is that it's a payment in exchange for services right i think it's profit or rising from office or employment is real and so so in paragraph fifty seven dollars of the pla complaint the alleged and this is a motion to dismiss we have to accept this is true they they say that they say that the saudi government spent two hundred and seventy five thousand dollars a tr and that that money was for lodging for saudi officials who were lobbying to repeal legislation that allowed american victims of nine hundred and eleven to sue the saudi government now that's not on your theory right ok but yet if the saudi government gave the president an expensive gift that would be correct  concerned about foreign interference in the new government why would we interpret why would a court interpret the monument closing or what would why would we do that so a couple convention that the framers were worried about foreign interference and influence in the new government that's one of the reasons why they were worried about it in a specific type of way they were worried about it in terms of as they listed out presen office and title they weren't worried if they didn't say any sort of way in which the foreign government could have any sort of influence over a federal official for example they didn't you know pretty big foreign governments from giving money altering title of any kind whatever i don't i don't know that language like that appears anywhere else in the constitution of any kind whatever that's true but it still has to be in a monument just like in the supreme court's decision in small words at any court and they said that that doesn't mean foreign courts even if it's in any court of any kind whatever the presumption against extraterritoriality would have still told you that that had to be limited to the domestic courts would it wasn't clear enough to go be as the court has said in cases like small and freeman and he doesn't change the meaning of the word it modifies the the the members brief they cite and he and ninety three a we'll see opinion which involve members of the u s administrative conference who had been partners of law firms they wanted to know whether because that because it involves lawyers and given the nature of the legal relationship and the duties of ethics of not even the members of the members who asked the question did not have a calling that they got done no work that's my point your hon that these funds they came to for for the work of other partners were attributed to them what's that got to do with the commands of that cliff again your honor i agree that that's the closest they have been let me mention a couple things that if you take that view of the world here's what follows so st what follows is on there are three let's not forget that the forum on which cause it doesn't it's not limited to the president applies to all federal all officer holding office of proper proper trust of the united states so on their theory every federal official at the founding who had a private business and that was quite common at the time we didn't have a overarching government bureaucracy in salaried people had side businesses every single one of them if you had for example in  you would be required to turn ask every person who came here and by the way are you here from a foreign government on a foreign government spends account and if you are you have to go away that seems utterly implausible it's even more implausible is in passed and nearly three quarters of the states passed a constitutional amendment that would have extended the forum on its class to all citizens on pain of losing citizenship so on their theory almost the entire country we came this close to having a constitutional amendment that would have said that if you were an innkeeper and you let a form got diplomats state you're in you lost your citizenship and their theory we almost passed countries lamented that said foreign diplomats couldn't buy food couldn't buy lodging couldn't buy clothing couldn't buy you assess things which i assume would mean you could actually be a foreign diplomat to the united states all together overwhelmingly passed by congress passed by merely three quarters of the states it's just not plausible that anyone understood the term a monument to have the sweeping scope they say it does let's fast forward to do that your honor take for example the interest on federal bonds and local  that would literally violate the domestic among scholars on their theory it is profit coming directly from the federal government or the state governments but myriad presidents have had bonds in their portfolios just just tell me once these say the oil seeping is a close as they happen if we were writing in opinion distinguishing what would we say how would we say that doesn't so what i would say is would we say two things  i don't think you can construe it if you construe it the more broad way that you're on or suggested it would have all the consequences i just said it just utterly implausible to read that term to have those consequences t virtually every president recently has probably via leave the domestic moments clause merely because they have treasury bills in there in their portfolio or municipal bonds in their portfolio that just not the ordinary meaning or understanding of the good morning and may it please the court i'd like to pick up on the colloquy that judge table hat with my friend on the other side the forum alignments clause is not constitutional cabinet of curiosities intended to prevent foreign influence when it comes through a gift of elephant tusks from the king of siam to president abraham lincoln but throwing open the door to potential foreign corruption when that influence is a conduit of vast international business relationships that simply does not make sense when you think of the important anti corruption purposes that drove the founders in the st place to put the board of all humans clause into the constitution for the remedies that my friend before we get to that i'd like you to address this the standing issue you are not here representing the house of representatives are you your honor we represent individual members who are and not here representing the house of representatives here representing the senate the united states you're absolutely correct there are regulations and statutes and regulations and procedures in both those bodies by which they determine whether they will appear in court to their lawyers isn't that correct yes your and you're not here under that authority we are not why does that not answer it was standing issue based on the presser right now your honor because this case is like coleman where it is an institutional injury not the personal type of injury that is not you have to say it's like coleman because if we're going to follow our own press and if we're going to follow reins that's the only type of standing a legislature can have it's and legislat they explained that vote all for cation involves not giving full of facts to the particular votes of legislators and in that case it was distinct because their votes were given full effect with respect to the line item veto act they simply lost that vote but here we are much more like coleman because the individual members that i represent have been completely denied a vote on that vote to to great lengths to say and coleman the key fact was that you had a number of legislators whose votes would have swung the outcome in a different fashion you don't have anything like that here your honor i would respectfully disagree and i think that you can sense the president is acting as if congress has given its consent by continuing to accept more normal humans also in the rains the court noted that part of the reason why the rains plaintiffs do not have standing is because their votes would not be nullified in the future and you can see that again come up in the arizona state legislature case here also the votes of the individual members are not applied in the future the president because he does not believe that he is accepting prohibit emoluments it's clear that he will not come to congress to get their consent before accepting them therefore both in it with respect to the ongoing violations and in the future but there is no there's no as i read what chief justice rehnquist was saying is that vote notification wasn't simply the idea that an individual legislator didn't have a chance to act on a matter but that it that the group notification made a difference there was a majority that had voted differently that's what i'm saying you don't have that he yes i think your honor so i think that's relevant and coleman because of the particular species of boat in all the case at issue in that case where there was a boat that was being specifically over ridden so it mattered in that case well what the result would have been but in this case i want to get  also said and rains that the act would not quote know what by their votes in the future and that is what we're talking about here as well because the florida mine once clause guarantees to individual legislators a specific vote and it is that both that is being completely devoid of effect there is no vote being allowed that is explicitly entitled to these numbers under the constitution the default rule is that congress by any action because of the default role of the foreign emoluments clause can in that way deny consent and this is important to the operation of the rule and my friend on the other side would turn the clause on its head by essentially shifting the default rule and saying for him all humans can be accepted unless congress says they can't that's not the way the constitution was written before you go to mary snow this is an interesting debate you're having about what remains and call me but i want to read you a the institutional interests of the legislature just as individual members like standing to assert the institutional interests of the legislature  single house of a bi cameral edge of cite your wife capacity to assert the long interest for going to the legislators at all in other words she said there's a mismatch in that case between the body seeking to which like that in this case there are says to me is that individual members of a legislature cannot sue to represent the interests of the legislature as a whole and in this case the constitution gives the interest to congress not the individual members even if i was even if i thought your interpretation of raines and coleman was correct what what do we do with this one so you that that is a very critical point and right that's why i have to be completely agree with you that when you're talking about a diminishment of legislative know how or in some way don't don't talk about  bound by i mean your arguments about raines and and and coleman are interesting but given what the court said in the in the in the virginia case why aren't i right to think you better take your argument to the supreme court and ask them what this sentence what the implications of this sentence are for rain cold front you see my point i absolutely see it just a question from from the perspective of this  that to that's my question i think that that language would be much tougher for us if we were seeking to vindicate any other clause other than the foreign emoluments clause because it specifically contemplates a specific vote come and then you can speak for congress but until you can't i think that's the thrust of the argument you're on i don't think that's true when you raise the particular type of and vote cation claim that we're raising here and that was raised in common and the reason that it's was more deliberate design it's a more fundamental issue here and that is you're not here representing congress so you can't seek to protect the institutional interests of congress tell congress to come here and we can on this court has been very careful to preserve and admittedly narrow window but not an impenetrable window of legislator standing for an individual asserting an institutional injury when there has been complete and there are no adequate legislative remedies and that is exactly the case we have here we are seeking as your honor said a vote that allows congress to consider and maybe consent or not consent to form a mine into before they are accepted that is the rule that is explicitly set down in the constitution and here i think we have there are two ways in which to form a monuments clause is unique relevant to this case st why isn't this done through over supposed to work the way that of achieves its anticorruption aims is by having it at the time of the founding this is incredibly important the person who wants to accept foreign reports and lay them before congress ensure that there's accountability and transparency and thus remove in many ways the potential for corruption by putting them before congress here we have a very unique situation of the president accepting for a moment so i think it's important to note that while there were adequate legislative remedies in campbell and china with that is not the case here because we're talking about a constitutional violation achieved through private conduct not using government funds so the power of the purse is not available in the way that it normally would be an addition any legislative remedy such as the ones that my friend on the other side has put forth because they affect the president's own financial stake in his constitutional violation would require him to essentially tie his own hands or would require super majorities in congress to pass a veto proof legislation and that would essentially twist the constitution to a degree that the four in a moment clause becomes unrecognizable so your honor i just want to make sure that we get back to the vote notification claim because i think that we both agree that the two part test of campbell applies here and the key language campbell when it's describing the vote in all of the cation basis for standing that is remains good law after the supreme court cases that we discussed it has been carefully preserved is when old vote is treated as if it has not passed or vice versa the president by accepting for sorry to obsess about the sentence from justice ginsburg bump i still haven't heard from you how we deal with that in this case it says the way i read that it says it's an individual member lacks standing to assert the interests of a why disliked that's what that says that individual member lacks standing to assert the a vote of a majority of both houses of congress and this case is that's it's even easier than house of delegates because at least in that case you had one house silly and that wasn't enough here you don't even have one house so you i still need an explanation of how the institutional interests of the legislature is different than any of these other cases what's your best  guaranteed in the constitution being denied to the individual members and the way that congress expresses its consent as the district court correctly held is through the votes of each of the individual members we are not here because there is some general diminishment of authority to legislate on the issue along and i agree with you that in that case it would be something that might be better pressed by the bodies themselves of course then you might have some other issues of adequate legislative remedies empathize just how narrow the rule we are seeking here is it falls in line with the way that the court described vote of cation and camp a specific vote to which individual members are entitled that they are being denied completely that's being treated as if it passed when it hasn't or will be nullified in the future that's a rule that has been reaffirmed by the supreme court in arizona state legislature  has a category of legislative standing that falls outside of justice ginsburg's language absolutely absolutely your honor this court in brains did not say that no individual member could not press an institutional injury if they did that opinion would have been much shorter and this court's opinions and campbell in china it would have been much shorter if that were the rule but it is not the rule the courts while narrowing they have narrowed legislator standing we absolutely would agree with that but they have been careful this court and the supreme court have been careful to preserve the situation of complete vote no occasion where there are no adequate legislative remedies and that is exactly the situation we find ourselves in here we urge the court to affirm the district court and allow this case to proceed thank you crime to squeeze four quick points in the two minutes per stretch table judge griffith i think the narrowest way to resolve this case is the point about the mismatch bathroom hell and reigns both make clear that at a minimum if you're going to  certain institutional injury you have to be the body that has the institutional right and i think the language that you focused on in brains is actually quite clear about this they said that there was a bloc of voters in coleman that were they were basically saying they were doing it as the kansas senate because for purposes of that issue they were senate point to once you realize that you realize why it's a big deal and why the problem to extend that theory to the federal legislators because it's one thing for the supreme court to say can't a senate can bring a lawsuit it's another thing to say that congress the united states can bring a lawsuit against the executive that's the whole history that range talks about that it's not permissible that's always been other than through the courts point three is even if you focus on both nullification i didn't hear any answer today as to why this is any different than campbell in campbell president clinton against norm hostilities the plaintiffs there argued both the declare war cause d and war powers resolution required consent of congress before you can engage in those hostilities and this court said that was neither nullification and there were legislative remedy it was the same exact thing they had the ability to consent but they've and the president was saying he was engaged in conduct he didn't need it here's what troubles me about your your position it seems to me that if you if you were right about standing and i'm not saying you are me if you are right about standing  it does it does raise the question of what is the remedy for alleged violations of the monuments clause and it seems to me one easy answer to that is congressional oversight but you're resisting that in other cases you're in other cases you're saying  congressional oversight is inappropriate so i'm just wondering what is congress to do in the case where it has reasons to think the monument's clause is being violated so i'll say whatever other couple different things about that  honor st again the domestic among which was present the same problem right the domestic law of cause regulates the president even they concede that they don't have standing to bring that to you that's why their claim is limited to born among them it's not domestic audience so you know that the fact that there may not be a remedy that congress would bring a lawsuit over isn't somehow dispositive in terms of what the remedies are i think again congress can pass a law that just like in coleman campbell congress could have passed a statute the president clinton stopping getting our bus deliveries but in this case how could congress pass a law without finding out about what the president is doing with respect to my name a question yet congress can act shouldn't act without evidence presumably to be able to pass in the morning because it would have to understand exactly what's happening and to pick up a point judge griffith the justice department's position in trying for his masers this is it subpoenas like that are invalid and your honor there is no impediment to congress passing a law that says any federal official who's covered by the emoluments clause if they know what i will say is they purport to be their members of congress if congress and the whole actually agreed with them you know that it is a problem for someone who is covered by the emoluments clause to have a business where foreign governments are using our patronizing it they can pass it you know when you say let's try once more ok and then just if you don't want to answer the question that's fine but if i understand your point given the position of the department of justice in other with a geisha united states that's what the supreme court has held twice both in franklin versus massachusetts and the converse is for gerald it said in light of the separation of powers concerns with suing the president you would have a minimum need and express statement these are members of congress if they sue the president and their bodies agree with them they can pass a law that says they can do it they haven't done so your honor and for that reason as well as the lack of standing