United states in his official capacity. The District Court committed multiple fundamental errors for refusing to dismiss the suit and plaintiffs are speedy spake up just a little bit and bring the microphone a little closer if you can. The plaintiffs are fundamentally mistaken in asserting that this court is powerless to correct any of those errors at this time. We have identified two different pass through which this court can grant relief but theres one overarching point that is of central importance. That is this. The Supreme Court in cheney make clear separation of powers are taken, our utmost important when considering mandamus petitions involving the president of the United States. For example, the court quoted chief Justice Marshall to say that in no case where the court be required to treat come proceed against the president as what against a private individual. Moreover, the court said the high respect that is to the office of the president must be considered throughout the entire proceeding. What does that imply in this case . Their position is that if the District Court erred in refusing dismiss the court, even if it clearly and indisputably aired to dismiss the suit, if every judge on this court agreed, deposition is this court is still powerless to do anything about it, that the president must go through District Court litigation subjected to discovery into his personal finances and official active administration and only at the end of all that can take an appeal from a final judgment which will then probably be dismissed. I thought it was your burden to show that you were clearly and indisputably entitled to mandamus or cut that that was what of the three requirements of mandamus relief. Is that not so . That is correct. So it is not that they are saying you havent met that. Its you having to demonstrate to us that you have met that, right . Your part right and part not right. It is true we have the burden to show clear speed is clear and indisputable right. Deposition is even if the court were wrong, if every judge in the world were to agree you should dismiss the suit the deposition if we still cant get appellate relief. That is their position. After skipping a step. You have to meet your burden first. Thats right and am happy to do that. I just want to make clear i think we have to talk about your burden because you would agree that mandamus is extraordinary relief. It is. You are entitled to this extraordinary absolute. What he wanted to set the outset was we had to meet sensually mandamus. Let me interject. Why dont you distinguish as you said this case what the d. C. Circuit did in a similar setting, where they sent it back, as i understand it. Ill answer both questions at the same time. I dont think there is an material distinction between what the d. C. Circuit did and what this court, youre asking this court to do in the following sense. The d. C. Circuit said the District Court clearly abused its discretion in refusing to grant 1292b certification. Without deciding whether it can grant mandamus on that basis that then we met at the District Court why dont you reconsider . With all respect i just dont think that is a material distinction between ordering this court to say youre clearly erred, you should grant certification and telling a lower court you clearly erred, why did you reconsider it. You seem to think theres a big difference in granting mandamus relief and doing that and thats why the question is well taken. Im sorry to persist in this, maybe you can explain why you meet the requirements for getting mandamus relief. The first legacy one less thing about that and i will turn back. And that are related. The reason why dont think theres a difference is because when you tell a District Court there clearly abused their discretion and why did you reconsider, only two things will happen. A recent District Court will follow the Court Construction and basically grant the certification. A totally intransigent District Court with thumb its nose at the court of appeals. Its more than a clear thats the first prong. Clear and indisputable air if you look at cheney its different that an abuse of discretion. And abuse of discretion but not a clear abuse of discretion. If you look at cheney it is expressed. I can read you the quote. But youre still skipping the first step. The first step is that you to demonstrate is a clear and indisputable right. So what is that clear and indisputable right . I have two different theories. And if you can answer along with that, what was the District Court legally required to do that it did not do . What did it have to do that was not done in this case . I think our simplest explanation to all three questions of gotten is we think it is clear and indisputable that you cannot sue the president of the United States in his official capacity without at a minimum having an express statement authorizing such a suit by congress. We think that is clear and indisputable but the Supreme Court has thrice held exactly that. I think thats your gloss and what the court held that we know from current litigation involving similar issues that several courts have allowed suits against the president to proceed. So how can it be clear and indisputable . It lower courts have found Supreme Court precedent that is not dispute. What the Supreme Court said, the question frank was what the president the subject is administered procedures act. He administered procedures act said it covers agencies and five agencies in the authority of the government of the United States. What the Supreme Courts that is that language did not express include the present nor did it expressly exclude the president. It recent in light of the separation of powers and the unique constitutional role of the president , textual silence was not enough and you needed an explicit statement from congress before the president could be subject to could i go back to the standard . You said there was a a clear ll error. Is it your view mandamus should issue if the reviewing court thinks theres been a clear air . Thats the standard we use direct review. I dont think anyone thinks we should grant mandamus on that ground. Theres a threepronged test showing clear and indisputable legal error or clear abuse of discretion, either one i think you take that of context from cheney. I know the court are talking about but its in the paragraph that talks about how this is an incredibly drastic remedy, how it is traditionally been used to ensure a District Court has not usurped or there some gross abuse of authority, usurped a power doesnt have, gone outside its jurisdiction. I think saying clear air is not the equivalent to what we are talking about. Im happy to accept anything from relations because those equally apply when you have suit that is against the president of the United States that is categorically foreclosed by Supreme Court precedent. This court has held in recent, if a lawsuit was filed in federal District Court that shouldve been before a federal agency, that is the sort of clear usurpation of jurisdiction to usual phrase that warrants mandamus review. As i understand your position, you have a clear and indisputable right in this case because the judiciary is seeking to usurped over the presidency of the United States on authority that is never been asserted or claimed before. That is absolutely right. The point i was trying to make is if it is a clear usurpation of jurisdiction to entrench on the primary jurisdiction of a federal agency, and agency that is exercising the president s executive power, then it is a clear to entrench upon the present autonomy and so. The president is the chief executive. You refer to franklin v. Massachusetts and cited it i think accurately but that left open the possibility of a suit against the president for a ministerial act and theres some other cases, clinton v. New york and the d. C. Circuit case against president nixon. If you could address whether you think the release being solved is ministerial or discretionary, i would appreciate your position on that. First, i dont think this is ministerial. I think in fact, making the precise error that the Supreme Court in mississippi versus johnson rejected. In mississippi, the plaintiff tried to say it was minister because the president did not act unconstitutional. The challenge was the certain reconstruction acts were unconstitutional and they said of course you have to comply with the constitution so its a minister duty. The Supreme Court said no, that is not what ministerial meets. The question is whether theres any discretion and if theres a reasonable dispute as to whether the act is unconstitutional and that is not mr. Ministerial, its executive. That question is question mark whether it would be constitutional to allow a suit against the president. Theres a aniseed step that is important. Before you have to decide that difficult constitutional question, at a minimum, but you have to expressly authorized such a suit. Congress should have to say that the president can be sued for ministerial acts. Thats the point of the clear statement environment that is in franklin. Its in nixon versus and is often basic canon. Why would this court construe an applied cause of action in ineqy for the first time in his nations history to present constitutional questions . This court avoids constitutional questions and that follow also just basic principles, they rely on traditional commonlaw equity power to join federal officials. There are two things about that. They cant assert such a history with respect to the the presid. Its always been lower federal officials. And second we know from cases that the scope of the traditional remedies has to be borne by history. The whole point of the Supreme Courts decision is that if youre trying to extend a traditional remedy, that has to be done by congress. Because of separation of powers. If thats true, whether dispute was over whether prejudgment particle post judgment partners could file suit, surely of the puzzle with you can extend a cause of action for lower federal officials to the president of the United States. We are treating this as if its some ordinary runofthemill case, and it is not that. The judiciary is asserting injunctive power over the present of the United States, and not only is it asserting that power, but its asserting it in an unprecedented way because you can understand the role of the judiciary in a case like United States versus nixon where the courts were aging in the enforcement of a a judicial subpoena in a criminal action. And you can understand cases where the courts have stepped in to vindicate rights that have been infringed by government. But this is neither of those. The government is not acting directly against in the individual and were not confronted here with enforcement of a judicial subpoena in a criminal action. What is being asked here is just wholly unprecedented, which is we are to create a cause action on our own under this emoluments clause. We have no history to guide us. We have no president to guide us, no right has been conferred or created by this clause, and no remedy has been spelled out. And in the face of all of those things we are to proceed alone to tie down the presidency in litigation. That is an excellent summary of her arguments. All i can say in addition theres no question there. Let me ask you could he answer my question . I didnt hear a question, im sorry. If you were a question, please answer. I think what i would say is it all of that is not enough to ward mandamus relief i just hard pressed understand how this court could say very trenching on executive agencies jurisdiction is enough to ward mandamus review. All the litany that the judge explained blows out of the water the case so an edge to the question can understand what you say, you say youre agreeing. What is the question . This is the exact thing that warrants mandamus relief. The story struggle authority to a cause of action, to do all this and not even allow an interlocutors appeal, its not only that so the question goes beyond just whether or not this is something the president , the separation of powers but goes to the question he above the law . The allegations here are essentially discovery that seeks third parties come primary businesses. Its not a prerogative of executive branch that is pink sought to get an order to tie that in you have to tie it into ultimately using whatever the president does put him above the law and out of the reach of the able to deal with issues that may be squarely there. Me ask a fundamental question is you started out to the effect that youre saying they she cant even be here, which before you even Start Talking mandamus you have to look to determine what is mandamus available in instance where the District Court has given a denial of certification. Its clear, i dont know of the cases have that in this fashion if you want to dick about something this have happened for in the tent circus have dealt with the know we has said it accordingly taken over by the Appellate Court. Appellate court cannot usurp power to do it. Congress spoke and it really comes down to a congressional word, share. But let me finish. In an instance of a District Court saying denial of certification in that particular instance, theres really no precedent for whats happening here today. Thats not true. Let me say three things. Theres one circuit. You would have to agree though that with the weight of authority is against you on that point. The word is precedent. Let me finish. My what is president. Theres a precedent for this. There may be another circuit but the weight of authority goes entirely the other way. Let me say a couple things about the weight of authority. First as you recognize theres one circuit and squarely done exactly what we said which is the 11th circuit in the fernandez case where the 11th circuit directed a District Court to certify. There only distinction is the District Court had not yet ruled on the certification motion. The 11th circuit didnt let the District Court exercised discretion. They thought so obvious that it directed it without giving the District Court the chance to talk would screw up which is what the District Court here did. It is both the d. C. Circuit in the parallel suit and the fifth circuit in the mclellan case have found what is the essential appointment. Face of the District Court clearly abused its discretion and they remained for the District Court to reconsider. On honest, ive hard to understd how any honest regional District Court judge in the face of that order would do anything other than what the judge in d. C. Did which is probably turn around and certify. The only difference between that and this is a completely intransigent judge who could care less that a panel of this court said he clearly abused discretion. Promptly turner and certify back to the District Court . That wasnt done here . I think the panel was absolutely right that it is pointless to remanded to the discipline to get the District Court the physical can thumb its nose at this court. Do you have any case where court of appeals has used mandamus as a vehicle to order a District Court to dismiss a case . The 11th circuit case speed is asking using mandamus to grant relief comes to grant the substantive relief ordering a District Court to dismiss a cas case. The point of this Court Decision in sewall was a should of been dismissed. Right, what im saying is the District Court in this case went through all the hoops. Everything needed to do in order to consider the issue of certification. The case was properly before the District Court. Wasnt a question that should been in another form. Our point is a should be in no form. In sewall the point was the District Court erred in dismissing and putting the case into executive agency. This Court Granted mandamus to say no, k should go to agency. Our point is the suit should be anywhere. Taking substantive action, in other words, this court youre saying this court can use the vehicle of mandamus to decide an issue in the case essentially just because it disagrees with what the District Court get. No, your honor. I agree as a lot of questions have tended it is to be a clear and indisputable legal violation. How did the court usurp its authority . For the same reason that in sewall efficacy court takes jurisdiction over case that the logs in front of an Administrative Agency court this court and the Supreme Court recognized that usurping the executive agency has a been a case, i would point to any case where the judiciary has asserted the power to enjoin the president of the United States in the exercis