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06/28/2017

More Originalism from Nonoriginalists: Eric Segall on Standing and the Emoluments Clause
Michael Ramsey

Eric Segall at Dorf on Law: Members of Congress Have Standing in the Emoluments Suit. From the introduction:

The President of the United States owns a posh hotel in the shadow of the White House from which he derives foreign-government revenue. Along with income and benefits from many other domestic and international businesses, this revenue stream creates the very conflict of interest that the founding fathers wanted to prevent by writing into the Constitution that “no Person holding any Office of Profit or Trust … shall, without the Consent of the Congress, accept … any Emolument … from any King, Prince, or foreign State.”

Members of both the House and the Senate have filed a lawsuit seeking to enforce this provision. These legislators allege that the President has violated their right, guaranteed in the text of the Constitution, to vote on and authorize the President’s acceptance of “emoluments.” They ask that the court require the President to obtain Congress’ consent before accepting benefits from foreign governments or divest himself of all interests in those businesses. Before the court may rule on this case, however, the plaintiffs must demonstrate that they have standing to sue. As a matter of text, precedent, and policy, these plaintiffs should have standing in this case.

The constitutionally required standing elements derive from Article III’s requirement that the judicial power only extends to a “case” or a “controversy.” As a matter of original meaning, there are good arguments that the founding fathers simply wanted to avoid sham or hypothetical lawsuits. There is no doubt that there is a real, live controversy between these members of Congress and the President. 

Dear Nonoriginalists:  Please, please, keep making these arguments.  We know you don't really think they are decisive (indeed, Professor Segall's post goes on to make mostly policy arguments).  But they show two things.  First, people think that originalism is possible (at least as to some clauses) -- despite what some historians and commentators try to tell us.  It's not quixotic to pursue the original meaning of provisions that are not obvious on their face.  Nonoriginalists (and presumably their audience) don't think it absurd or incoherent to make claims about the original meaning of the emoluments clause or the case-or-controversy provisions (both of which are disputed and not obvious).  So when originalists make such claims, they aren't acting the part of some cultish outliers, but rather are part of the ordinary legal discourse.  (The difference is that originalists think these claims actually should be decisive, or at least more decisive.)  

Second, people think it matters, at least to some extent, what the original meaning is.  Otherwise, nonoriginalists would not be making originalist arguments.  Presumably they are not making them for the benefit of a handful of originalist scholars.  Rather,  there's a sense that original meaning has some weight -- perhaps not decisive weight, but some weight -- in conventional legal argument.  Thus, again, originalists are not cultish outliers, looking to some oddity that no one else thinks relevant.  Rather, there's simply a dispute about how much weight originalist evidence should carry.  The gap between originalists and nonoriginalists, when it comes to argument about specific constitutional provisions, is narrower than it might seem.

That's important because at a theoretical level it's often portrayed differently.  Recall the Gorsuch hearings.  Much of the argument against originalism as a general matter had the tone of either (a) originalism is impossible or incoherent; or (b) originalism is a bizarre approach that focuses on things no one else cares about.  But when the discussion turns from the theoretical to the specific, both of these claims evaporate (at least if nonoriginalists think originalism helps them get where they want to be).

So please, nonoriginalists, keep making originalist arguments.  It shows you really care.