Even the most seasoned constitutional lawyers haven’t given much thought to the “Emoluments Clause” in Article I, Section 9 of the US Constitution. The Chimps have spent a combined 25 years teaching constitutional law to actual law students at an actual ABA-accredited law school, and we can assure you that the Emoluments Clause never made its way onto any syllabus. Donald Trump might change all that.
The evidence is mounting that Trump and his offspring will be rewarded handsomely by foreign interests – friends and foes alike – who seek Trump’s favor as to their own (often diabolical) ends. And the great liberal hope emerging as a would-be constitutional bulwark against Trump’s foreign entanglements and corruption is the aforementioned Emoluments Clause.
Unfortunately, this hope is in league with other air castles conjured in the daydreams of shocked and traumatized progressives. Like the preoccupations with recounts and the Electoral College, reliance on the Emoluments Clause to solve the Trump problem offers only false hope. Let The Laughing Chimps explain.
The Emoluments Clause reads as follows:
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
An emolument is something of value — usually compensation or a perk. So what this clause means is that Trump should not be accepting – let alone seeking out – favorable business deals or anything of value from foreign countries, leaders, or emissaries while in office. Like he’s done with every other protocol or rule in his orbit, Trump has already begun breaching this command before he’s even downgraded from the gaudy environs of his Fifth-Avenue domicile to the merely dignified mise en scène of the White House. There seems little doubt that Trump will repeatedly be – how shall we say it? – emolumented.
But if you think it’s easy to get a constitutional command enforced against a sitting president, you’re wrong. First, there is the issue of standing; before a lawsuit could be commenced against Trump to enforce the Emoluments Clause, a plaintiff (the person who files a legal complaint) would have to emerge who had suffered real, concrete, and individualized harm as a result of Trump’s misbehavior. And the party most likely to be harmed by his misbehavior would be, well, all of us Americans. And an injury suffered by all of us is decidedly not an individualized harm; it’s what courts call a “generalized grievance.” The standing requirement derives from Article III of the Constitution, which empowers federal courts only to address “cases and controversies,” not to soothe hurt feelings or facilitate the airing of widespread rancor.
But let’s assume that somebody somewhere might have standing – maybe one of Ivanka’s fancy-shoe-company competitors who loses out on a sweet deal in the Philippines because Rodrigo Duterte fakes a fetish for Ivanka’s racy alligator pumps. Even if the standing issue were overcome, a more serious hurdle would remain. That hurdle is called the political question doctrine.
First the legalese: a question is a non-justiciable (not suitable for being addressed or decided by a court of law) political question if there are no manageable standards for deciding the case; if deciding the case would be imprudent and might cause embarrassment by producing multiple and inconsistent pronouncements from different branches of the same government; or if the issue presented in the case is committed to a branch (or branches) other than courts under the text of the Constitution.
What a mouthful, right? Let’s take a hypothetical example (or what we law profs like to call a “fact pattern”). Suppose that we have a mutual-defense treaty with Mexico that requires the US to treat an attack on Mexico by any other country as an attack on the United States itself, requiring a full-scale retaliatory strike by the United States against the aggressor nation. The treaty is valid and has been on the books for years; it is without question part of the supreme law of the land. Now suppose that Guatemala gets crazy and starts launching hit-and-run-style raids across the Mexican border, taking out a drug cartel here and there but doing little more. Mexico gets pissed, declares itself at war with Guatemala, invokes the treaty, and asks that the United States flatten Guatemala posthaste. The US president says “Nope, you’re on your own.” The president then gets sued by some injured party (let’s assume we can find one) and that party asks a federal judge to force the president to comply with the treaty.
Here’s what the judge would say. First of all, this kind of thing doesn’t happen every day. No court has ever developed any legal rules for resolving such a case. And even if a court were to try to develop rules, it would fail. That’s because the word before “Doctor” on a judge’s law-school diploma is “Juris.” We’re not trained in resolving foreign-policy or military disputes; we’re trained in resolving conflicts among or between parties where rules either already exist for resolving those conflicts or can be invented by people with training in the law. Put another way, although the claim involves a question, it is not a legal but a political question.
Second, imagine a commanding general or admiral on scene. In one hand, she has an order from the president of the United States to stand down and merely observe. In the other hand, she has a judgment from a court instructing her to honor the treaty and attack. What kind of judicial decision would place a military commander in that kind of position, stuck between two conflicting and authoritative commands? Perhaps an imprudent one? Maybe one that would also cause embarrassment – as, for example, when Mexico and Guatemala get wind of this train wreck and begin asking who is in charge of the United States?
Third, and finally, the text of the Constitution says much about foreign affairs and war-making. For example, Article I gives Congress the power to raise armies and navies and declare war (quaint, we know). Article II makes the president the commander-in-chief of the armed forces. And you know what Article III, the part of the Constitution about courts, says about foreign affairs and war-making? That’s right: nothing. The question is textually committed to both of the other branches of the federal government, so let’s let them figure it out. That’s what they’re paid for.
Let’s apply these principles to a suit against the president to enforce the Emoluments Clause. First of all, we’ve never had a president before who either a) owns or licenses garish properties all over the globe or b) openly and notoriously conducts personal business with foreign power brokers while also purportedly conducting the business of the people of the Unites States. There are no rules in place for dealing with this, and if a court were to try to craft rules, what is it supposed to do, anyway? Micromanage the president’s business affairs? Enjoin his conversations with foreign leaders and diplomats? Take away his twitter account? Hit him on the nose with a rolled-up newspaper? There are no judicially discoverable standards for dealing with a clown like Donald Trump. That, in fact, is one of Trump’s greatest assets: nobody, let alone courts, can figure out what to do with him.
Second, Trump’s presidency will be embarrassing enough merely by virtue of the breathtaking fact that it exists at all. Courts are unlikely to compound the serial humiliations soon to be visited upon the United States by injecting their own judgments and opinions into an already uncontrollable conflagration of childlike antics with deadly serious outcomes.
Third, and finally, note how the Emoluments Clause says that a president should not accept anything of value from a foreign country “without the consent of the Congress.” Obviously, the Republicans in charge of both houses of Congress could simply enact legislation allowing Trump to do whatever he wants. But even if Congress does nothing, a court will likely read that phrase, “without the consent of the Congress,” as signaling a textual commitment of this question to Congress, not courts. If Congress wants to allow the president to corrupt US affairs with his own personal interests in enrichment, then so be it. And if the president goes too far, it’s up to Congress — not courts — to address the problem. And conveniently enough, Congress, unlike courts, has a ready-made remedy at its disposal: impeachment and removal from office.
In short, Donald Trump will have to be dealt with by we the people, not the courts. Federal courts will not intervene under the guise of enforcing the Emoluments Clause; they won’t want to get involved in all that mess, and the political question doctrine will provide them with the means to punt on this issue even in the unlikely event that anyone will ever have standing to raise it.
We need to stop fantasizing about gimmicky ways to undermine a Trump presidency, deal with the reality that that presidency is coming, and develop strategies, messages, and narratives that will be effective in defeating Trump in 2020 and stopping a disaster like the 2016 election from ever happening again.
We’re on it. Stay tuned.