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12/23/2017

Emoluments Case Dismissed (with my Comments)
Michael Ramsey

The opinion from Judge Daniels (S.D.N.Y) in CREW et al. v. Trump is here.  (Via PoliticoJudge dismisses suits claiming Trump violated emoluments clause.)

The opinion mostly rests on doctrinal analysis finding that plaintiffs lack standing.  There's this about the original intent of the emoluments clauses (concludind that the plaintiffs are not within the "zone of interest" for standing purposes): 

Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition. The prohibitions contained in these Clauses arose from the Framers' concern with protecting the new government from corruption and undue influence. Indeed, at the time of the Founding, the new republic was conscious of the European custom of bestowing gifts and money on foreign officials. The Framers, who fought a war to gain their independence from British rule, wanted government officials to avoid future undue influence. As Edmund J. Randolph explained at the Virginia Ratifying Convention,

The [Foreign Emoluments Clause] restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state .... This restriction is provided to prevent corruption.

Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 465-66 (2d ed. 1891); (see also Br. of Former Gov't Ethics Officers as Amici Curiae Supporting Pls., ECF No. 71-1, at 1 (stating that the Clauses "are an important check on corruption, and a beacon for good governance.").)

The Framers were not only concerned with foreign corruption, but they were also wary of undue influence from within. To ensure the president's independence from the states and additional financial incentives from the federal government, the Framers included in the Constitution the Domestic Emoluments Clause. That clause was meant to ensure that the president has "no pecuniary inducement to renounce or desert the independence intended for him by the Constitution." The Federalist No. 73 (Alexander Hamilton). Evidently, the Framers were concerned that

[T]he legislature, with a discretionary power over the salary and emoluments of the [president], could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations.

Id. The Clause also helps to ensure presidential impartiality among the states given that"[n]either the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act." Id.

Given this history, there can be no doubt that the intended purpose of the Foreign Emoluments Clause was to prevent official corruption and foreign influence, while the Domestic Emoluments Clause was meant to ensure presidential independence. Therefore, the Hospitality Plaintiffs' theory that the Clauses protect them from increased competition in the market for government business must be rejected…

Apparently as independent grounds for dismissal, the court found the case to be a political question and (relatedly) unripe for adjudication:

Plaintiffs' Foreign Emoluments Clause claims do implicate political question concerns. The political question doctrine has its roots in the separation of powers and is ultimately a doctrine of justiciability. It bars courts from deciding cases that are inappropriate for judicial resolution based on a lack of judicial authority or competence, or other prudential considerations. [Citing Baker v. Carr]

Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the Foreign Emoluments Clause makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant's conduct unlawfully infringes on that power. If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant's conduct. As such, this case presents a non-justiciable political question.

[In addition,] Plaintiffs' Foreign Emoluments Clause claims are indeed not ripe for judicial review. Ripeness is a different justiciability doctrine designed to prevent courts from prematurely adjudicating cases. [Citing Abbot Labs. v. Gardner and Justice Powell’s opinion in Goldwater v. Carter].  … Here, Plaintiffs' suit implicates a similar concern regarding a conflict between two coequal branches of government that has yet to mature. As indicated earlier, the Foreign Emoluments Clause makes clear that Congress, and Congress alone, has the authority to consent to violations of that clause. Plaintiffs' principal allegation is that Defendant has completely ignored this balance of power by continuing to accept emoluments without Congressional approval. As such, this case involves a conflict between Congress and the President in which this Court should not interfere unless and until Congress has asserted its authority and taken some sort of action with respect to Defendant's alleged constitutional violations of its consent power.

At this stage, it would be "both premature and presumptuous for [a court] to render a decision on the issue of [whether Congress's consent] is required at this time or in the near future when ... Congress itself has provided no indication whether it deems such [consent] either necessary, on the one hand, or imprudent, on the other." Dellums v. Bush, 752 F. Supp. 1141, 1149-50 (D.D.C. 1990). If Congress wishes to confront Defendant over a perceived violation of the Foreign Emoluments Clause, it can take action. However, if it chooses not to, "it is not [this Court's] task to do so." Goldwater, 444 U.S. at 998. This Court will not tell Congress how it should or should not assert its power in responding to Defendant's alleged violations of the Foreign Emoluments Clause. In short, unless and until Congress speaks on this issue, Plaintiffs' Foreign Emoluments Clause claims are not ripe for adjudication.

I'm not persuaded by either of these latter points.  Of course, it is a political question textually entrusted to Congress whether to approve of the receipt of emoluments.  But the question here is not whether Congress rightly or wrongly approved; the question is whether absent approval the benefits the President is receiving count as "emoluments" for constitutional purposes.  That's purely a question of constitutional interpretation, the type of activity to which courts are particularly suited, and exactly the sort of question that, under Zivotofsky v. Clinton, is not a political question.  (Aside: why do courts persist in relying on Baker v. Carr and ignoring the more recent and more important decision in Zivotofsky?).

I do think there is a potential political question, but it's not the one the court identifies.  Rather, it is whether Congress has implicitly approved (or decided that the benefits are not emoluments, or that the emoluments clause does not apply to the President).  Congress has been interacting with the President for almost a year now, with full knowledge of the emoluments issues raised in this case, without (as an institution) making any objection.  Arguably that might count as implicit approval, and arguably it's a political question how Congress chooses to signal its approval.

Relatedly, I don't think much of the ripeness argument.  If Congress were actively considering the issue, or if the matter had just arisen, I could see an argument that the court should wait.  But Congress does not seem to be actively considering it.  So that squarely presents the question whether the President is acting unconstitutionally by receiving benefits without the consent of Congress.  Dellums and Goldwater both involved suits by members of Congress, so perhaps the considerations were different.  But if a private party is harmed, the burden should be on the President to get consent, not the other way around.  Calling the present decision unripe in effect means that Congress must affirmatively disapprove to block the President's action.  That's not how the Constitution reads.

Indeed, if the ripeness decision is correct it would seem to bar all sorts of separation of powers disputes that we ordinarily think of as justiciable.  Commonly the President is said to be taking an unconstitutional action because Congress has not approved.  In the famous Steel Seizure case, for example, the claim was that the President had seized steel mills without Congress' approval.  That did not make the claim unripe.  It meant that, if the claim had merit, the President could not act unless Congress approved.  I don't see why the same conclusion shouldn't apply here.