Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of Neither Party with Respect to Motion to Dismiss on Behalf of Defendant in His Individual Capacity
District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, and in his individual capacity, Civ. A. No. 8:17-cv-01596-PJM (D. Md. May 8, 2018) (Messitte, J.), Dkt. No. 114
30 Pages Posted: 23 May 2018
Date Written: May 8, 2018
Defendant Trump, in his individual capacity, has filed a motion to dismiss the Emolument Clauses-based civil action brought against him in the District of Maryland. This amicus brief supports in part, and rejects in part the President's argument.
The Plaintiffs (DC and Maryland) have brought their claims against the President in his individual and in his official capacity -- yet, the gravamen of the allegations against the President all relate to quintessential private commercial conduct. These factual allegations cannot give rise to an official capacity claim, and at most should be plead against Trump in his individual capacity.
Any individual capacity claim must founder absent a cause of action. No such cause of action has been created by Congress, and the Supreme Court has not extended its judicial creativity in this sphere beyond private causes of action in connection with civil rights violations relating to the 4th, 5th, and 8th Amendments. For that reason, among others, the individual capacity claim must be dismissed.
This brief makes heavy use of the pathbreaking academic scholarship of Professor Laurence H. Tribe and Josh Matz, Esq. See, e.g., Laurence H. Tribe, How to Violate the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment, 12 Const. Comm. 217 (1995); see also, e.g., Laurence Tribe & Joshua Matz, To End A Presidency: The Power of Impeachment (2018).
Finally, I suspect this is the only brief ever to use the phrase: "mayoral moonshine."
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