This week we highlight two new cert petitions that ask the Supreme Court to decide whether business competitors of the Trump International Hotel have the right to sue the president under the Constitution’s emoluments clauses. Trump v. Citizens for Responsibility and Ethics in Washington and Trump v. District of Columbia involve challenges to President Donald Trump’s ownership interest through the Trump Organization in various properties and restaurants in New York and Washington, including the Trump Hotel. Originally filed in 2017, the lawsuits allege that Trump is violating the foreign and domestic emoluments clauses, which prohibit the president from receiving funds or other benefits from foreign or state governments or officials.

In the first case, the challengers own, operate or work for hospitality companies, hotels or restaurants in New York or Washington. They argue that their businesses have suffered because foreign and domestic governmental customers have patronized Trump’s interests. The U.S. Court of Appeals for the 2nd Circuit rejected the president’s attempt to dismiss the case. His petition asks the Supreme Court to decide whether business competitors have a legal right to sue to enforce the emoluments clauses. In the second case, Maryland and the District of Columbia assert an interest in protecting businesses within their jurisdiction that compete with the Trump Hotel, among other arguments. After a district court rejected the president’s request to dismiss the lawsuit, Trump asked the U.S. Court of Appeals for the 4th Circuit to reverse that decision through a legal mechanism called a writ of mandamus, which is essentially an order from a higher court commanding a lower court to correct a clear error. The 4th Circuit declined. The president’s petition asks the justices to decide whether a writ of mandamus is appropriate.

There are now three cert petitions pending at the Supreme Court involving challenges to Trump’s business activities under the emoluments clauses. The third case – Blumenthal v. Trump, which we featured in July – was brought by Democratic lawmakers.

These and other petitions of the week are below the jump:

The Moodsters Company v. The Walt Disney Company
20-132
Issues: (1) Whether originality is the proper standard to determine character copyrightability; and (2) whether copyrightability — for a character or any work — is a question of fact, or involves questions of fact, ill-suited for resolution on a Rule 12 motion.

City of Sacramento, California v. Mann
20-161
Issues: (1) Whether the First Amendment protects intimate associations absent expressive activity; (2) whether, if so, that protection exceeds what the due process clause provides; (3) whether sibling relationships can qualify as intimate absent cohabitation; and (4) whether liability under 42 U.S.C. § 1983 for associational deprivation requires an intent to harm the protected association, rather than also encompassing incidental results.

Cummings v. Premier Rehab Keller, P.L.L.C.
20-219
Issue: Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.

Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System
20-222
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the respondents in this case. This listing occurs without regard to the likelihood that certiorari will be granted.
Issues: (1) Whether a defendant in a securities class action may rebut the presumption of classwide reliance recognized in Basic Inc. v. Levinson by pointing to the generic nature of the alleged misstatements in showing that the statements had no impact on the price of the security, even though that evidence is also relevant to the substantive element of materiality; and (2) whether a defendant seeking to rebut the Basic presumption has only a burden of production or also the ultimate burden of persuasion.

Pitch v. United States
20-224
Issue: Whether a federal district court has the inherent authority under case law precedent or the Civil Rights Cold Case Records Collection Act to release grand jury materials under exceptional circumstances outside of the exceptions listed in Rule 6(e) of the Federal Rules of Criminal Procedure, including in cases of historical significance in which public interests strongly compel disclosure.

Immigration and Customs Enforcement v. Padilla
20-234
Issues: (1) Whether 8 U.S.C. § 1225(b)(l)(B)(ii) — which authorizes the government to detain aliens who are placed in expedited removal proceedings, but who then establish a credible fear of persecution based on a protected ground — violates the due process clause of the Fifth Amendment because it contains no provision authorizing bond hearings; and (2) whether 8 U.S.C. § 1252(f)(1) prohibits lower courts from granting classwide injunctions against the operation of 8 U.S.C. §§ 12211232.

Old Republic Home Protection Co. v. Sparks
20-237
Issue: Whether, in a case involving interstate commerce and a written contract with an arbitration provision that expressly requires application of the Federal Arbitration Act, a state arbitration statute that by its terms “shall not apply to . . . contracts which reference insurance” (a) qualifies as a “law enacted by [a] State for the purpose of regulating the business of insurance” under the McCarran–Ferguson Act, and (b) can support reverse preemption of the FAA based on an asserted impairment of such a state law.

Trump v. Citizens for Responsibility and Ethics in Washington
20-330
Issue: Whether plaintiffs who claim to compete with businesses in which the president of the United States has a financial interest can seek redress in an Article III court to enforce the foreign and domestic emoluments clauses of the U.S. Constitution against the president.

Trump v. District of Columbia
20-331
Issues: (1) Whether a writ of mandamus is appropriate because, contrary to the holding of the U.S. Court of Appeals of the 4th Circuit, the district court’s denial of the president’s motion to dismiss was clear and indisputable legal error; and (2) whether a writ of mandamus is appropriate, contrary to the holding of the 4th Circuit, when the district court’s refusal to grant the president’s motion to certify an interlocutory appeal was a clear abuse of discretion under 28 U.S.C. § 1292(b).

Posted in The Moodsters Company v. The Walt Disney Company, City of Sacramento, California v. Mann, Cummings v. Premier Rehab Keller, P.L.L.C., Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System, Pitch v. U.S., Immigration and Customs Enforcement v. Padilla, Old Republic Home Protection Co. v. Sparks, Trump v. Citizens for Responsibility and Ethics in Washington, Trump v. District of Columbia, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: A pair of cases on Trump and the emoluments clauses, SCOTUSblog (Sep. 18, 2020, 5:01 PM), https://www.scotusblog.com/2020/09/petitions-of-the-week-a-pair-of-cases-on-trump-and-the-emoluments-clauses/