The Emoluments Clauses Litigation, Part 8: There is no cause of action for a suit against the President in his individual capacity for purported violations of the Emoluments Clauses

|The Volokh Conspiracy |

Throughout the Emoluments Clauses litigation (See Parts 1, 2, 3, 4, and 5), we have argued in amicus briefs filed with federal district courts in New York, the District of Columbia, and Maryland: that the complaints were each filed against the President exclusively in his "official" capacity, but the conduct plaintiffs are complaining about is not "official" conduct. As we noted in Part 6 of this series, the Department of Justice ("DOJ"), which is defending the President, has failed to argue that the Maryland complaint (where the issue was discussed during oral argument) or any of the other two complaints were improperly pleaded. To the contrary, DOJ has maintained that the Maryland case is properly pleaded as an official capacity suit. Part 7 explained why the President's acceptance or receipt of purported profits and purported emoluments are not, as DOJ argued, "executive action."

This eighth installment will address an essential follow-up question. Even if the Plaintiffs (in the Maryland case) amend their complaint to enjoin conduct taken by the President in his individual capacity, they still will have failed to state claim on which relief can be granted. Why? Because there is no express or implied constitutional cause of action under which the Plaintiffs can bring such an individual capacity suit.

As a general matter, federal officers can be sued in their official capacity for purported violations of the Constitution. We have already addressed (in parts 6 and 7) why the allegations made against President Trump do not amount to an official capacity suit. (Likewise, we set aside for a moment whether a federal court has the power to issue an injunction against the sitting President, in light of Mississippi v. Johnson.) On the other hand, in order for such officers to be sued in their individual capacity, the Plaintiffs must identify a relevant cause of action. No cause of action exists to allow a suit against the sitting President in his individual capacity for violating the Constitution's Foreign and Domestic Emoluments Clauses. Causes of action come in two types: express and implied.

Express Causes of Action. Unlike the traditional congressionally-enacted action brought under 42 U.S.C. § 1983—which allows suits against state officers in their official and individual capacities—Congress has never seen fit to create by statute an express cause of action against federal officers, much less a cause of action against federal officers based on the Emoluments Clauses. (That Congress could have enacted such a statute, and have not done so, should provide courts some pause to resolve these matters.)

Implied Causes of Action Based on the Constitution. The Supreme Court has created implied constitutional causes of action under the Fourth, Fifth, and Eighth Amendments pursuant to the doctrine announced in Bivens v. Six Unknown Named Agents. 403 U.S. 388 (1971). However, the Supreme Court has not seen fit to imply a constitutional cause of action against federal officers with respect to any other rights-conferring provisions of the Bill of Rights. See generally Erwin Chemerinsky, Federal Jurisdiction § 9.2 (7th ed. 2016). Indeed, the Supreme Court's recent plurality decision in Ziglar v. Abbasi casts serious doubt on extending this doctrine to any "new Bivens context" with respect to the Fourth Amendment. 137 S. Ct. 1843, 1860 (2017).

This rule would apply with even greater force to structural provisions (as opposed to rights-conferring provisions) of the Constitution, such as the Foreign Emoluments Clause and the Domestic Emoluments Clause. These two structural provisions have never been the basis for an implied cause of action. The plaintiffs in the Maryland litigation have cited Bond v. United States (2011) for the proposition that claims based on structural provisions of the Constitution are justiciable. Plaintiffs' claim is a stretch. In Bond, the defendant raised the Tenth Amendment as a defense against a criminal prosecution. The usual rules of justiciability are very different in the civil and criminal context. In any event, because of the ongoing prosecution, the defendant in Bond did not need to rely either on an implied or an express cause of action. Bond therefore does not speak, one way or the other, to whether a new and novel judicially-created implied constitutional cause of action should be implied from the Foreign Emoluments Clause or the Domestic Emoluments Clause.

Furthermore, under Ziglar, courts should hesitate before creating a new judicially-created implied constitutional cause of action based on provisions of the Constitution that have never been interpreted by the Supreme Court at all. Finally, although we have questioned whether the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342(a)(1)(E) is premised on the Foreign Emoluments Clause, (Response at 18–19), to the extent that the former statute is authorized by the latter constitutional provision, the case for an implied constitutional cause of action becomes even weaker because Congress's statute occupies the field. That a federal statute occupies the field, counsels against a court crafting a novel judicially-created implied constitutional cause of action.

A federal officer could violate the Foreign Emoluments Clause in either his official or individual capacity—that is, such a constitutional violation may or may not involve government policy. While both types of constitutional violations are unlawful, the manner in which the clause is violated matters for purposes of litigation. Here, for example, a lawsuit to prevent a federal officer from accepting unlawful emoluments in his official capacity would seek declaratory or injunctive relief to halt the government policy that authorizes or orders him to receive the (purported) emoluments. The Supreme Court recently explained that such an official capacity suit would "require action by the sovereign or disturb the sovereign's property.'" Lewis v. Clarke (2017) (quoting Larson v. Domestic and Foreign Commerce Corp. (1949)). If the suit were successful, the court would enjoin the policy that permits or mandates the receipt or acceptance of the (purported) prohibited emoluments.

In contrast, if a federal officer received or accepted (purported) prohibited emoluments in his individual capacity—that is, not pursuant to any government policy—the prayer for relief would look very different. In this latter situation, the prayer for relief, if successful, would not "require action by the sovereign," because the sovereign took no action in the first place to enable receipt or acceptance of emoluments.

The federal courts can hear the former type of lawsuit, i.e., an official capacity lawsuit, brought against an officer in his official capacity for constitutional violations, by virtue of the Constitution standing alone, without any federal statute. Individual capacity suits are entirely different. The latter type of suit, i.e., an individual capacity lawsuit, is theoretically possible, so long as a cause of action exists. Unlike an official capacity suit (which can be based on the Constitution standing alone), an individual capacity must be supported either by a federal statute or by a judicially-created implied constitutional cause of action. There is no express cause of action based on any applicable federal statute, and for the reasons discussed above, the weight of Supreme Court precedent would indicate (we think) that such a cause of action should and cannot be implied.

Indeed, we speculate that the reason these three lawsuits have not been argued in the alternative from the day each lawsuit was first filed, is because every step in the analysis above was entirely understood by (at least some of) plaintiffs' attorneys. After all, the principles laid out here are basic: bread-and-butter principles taught in first-year civil procedure and third-year federal courts classes.

Admittedly, many aspects of this case are unsettled and novel. For example, the Supreme Court has never passed on whether the Foreign Emoluments Clause applies to the President, nor has it opined on whether such suits are justiciable. We do not purport to predict how the Court or any federal court will rule on such issues of first impression. However, the distinction between official and individual capacity suits is well-settled. Likewise, the Court's jurisprudence has evinced a strong hesitancy to extend implied causes of action beyond the Fourth, Fifth, and Eighth Amendments. Even if the Maryland Plaintiffs establish standing, and show that the case is justiciable, the absence of an express (that is, a statutory) cause of action or an implied constitutional cause of action, and cases like Ziglar, provide the courts with an easy way to dispose of these cases.

There is, in fact, a distinct risk for the Maryland Plaintiffs in pressing the suit against the President in his individual capacity. In Ziglar, there was only a four-member majority, due to Justice Scalia's passing. The Emoluments Clauses litigation could provide a five-member majority with an opportunity to slam the door shut, permanently, on implying new judicially-created causes of action (and perhaps terminating the doctrine entirely). This entire doctrine is largely a vestige of the Warren Court that has been fluttering on life support for two decades or so. The Emoluments Clauses cases, ironically enough, could put an end to this doctrine, altogether. We suspect several of the scholars who are closely affiliated with this litigation, as well as their amici, would not want to take this risk—which may explain why an amended complaint still has yet to be filed.

***

The ninth part in this series will discuss additional follow-up questions concerning individual capacity suits.

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27 responses to “The Emoluments Clauses Litigation, Part 8: There is no cause of action for a suit against the President in his individual capacity for purported violations of the Emoluments Clauses

  1. For example, the Supreme Court has never passed on whether the Foreign Emoluments Clause applies to the President,

    This is not surprising. The electorate has tended to avoid shameless grifters in presidential elections.

    1. I will take the argument seriously that the Emoluments Clause applies to the President when Congress applies it to itself. I seriously doubt that Congress takes any care or consideration whether they do business with foreign governments in their own business dealings, or never take any thing of value when they are junketing overseas.

      1. Congressional hypocrisy has no bearing on the legal issues.

        1. Neither do these giant technical posts laying out 10 reasons why Trump needn’t care about conflicts of interest.

          1. One day when your read up on prior presidents you will be shocked to learn that a great many of them actually had businesses prior to and while they were President. One day.

            1. We’ve had this discussion before. Not in the modern era, and they didn’t have foreign people going out of their way to pay them money.

              But you don’t care about conflicts of interest at all. Trump can handle it, he’s incorruptible!

              1. No, Trump is not incorruptible. However the Emolument’s clause can not be reasonably read as a general purpose conflicts of interest clause.

                1. What do you see as it’s purpose then?

                  1. I’m not certain, but I assume it involves birth certificates, e-mails, and Alinsky.

                  2. what the text explicitly says, nothing more, limiting certain specific conflict of interests tied specifically and directly to foreign governments.

                    1. It says,”directly?” In bold.

  2. Seems to me that, individually, these posts aren’t long enough. Also, not sure there are enough of them scheduled?no mention of anything past No. 9.

  3. I agree the actions were done in individual capacity. And I suspect theplaintiffs could distinguish Zigler if they wanted to. There is no national security crisis, and the plaintiffs would probably be happy to limit themselves to injunctive relief and forego money damages if it opened a path to getting their point across. Nonetheless, I doubt the plaintiffs will succeed here. Standing, the Longhorns precedent of previous presidents who owned private business, the possibility allowing a suit like this could open Presidents to endless litigation, and other factors will probably be more decisive. In addition, the Court could easily hold that pre-Bivens jurisprudence limits Bivens remedied to the most extreme instances of intrusion on rights – false imprisonment, perjured evidence, fundamentally unfair trials, cruel treatment, etc. – and hold that even if the Emoluments clause creates personal rights, exposure to a little bit of competition, even if the President’s position gives him an unfair advantage, is nothing like the sort of conduct where Bivens-derivative remedies were endorsed.

  4. Sorry, the longtime precedent

    1. Are you a Texan, that you have Longhorns on the brain? 🙂

  5. Obama accepting the Nobel Prize was a clear violation of this clause. The foreign actors were clearly trying to influence Obama by giving him something of value. A patriot would have stood in front of those losers and told them to stick their prize up their collective “you know what”s…but if they won’t do that a patriot would have handed the prize to a Marine and explained to the Eurotrash how we really get more peace!

    1. A true patriot would be a dick to Europe because Ameericcaaa!

      1. Also Obama’s speech was basically explaining peace through superior firepower. But I don’t think you care.

        1. The Eurotrash were trying to influence Obama after the Bush years. I opposed the Iraq War but I knew Bush had the best of intentions and a stable Iraq stood to benefit Europe more than America. The Eurotrash are morons and Obama should have rejected their attempt to influence our foreign policy.

  6. Imagine a scenario in which the country has a de facto political aristocracy which is being challenged by people who engage in work and commerce for a living. To keep the low-class people out, the blue-bloods set the salary for all political offices at $1 a year, and argue for a strict interpretation of the emoluments clause, so that only people with inherited wealth can afford political office. How would we interpret the Clause in this situation? We should not let the immediate situation, or our sympathies for particular parties, overshadow a long-term view. An interpretation of the Emoluments clause so strict that it keeps people who make money for a living out could keep whole classes of people out. One of the charming scenes in Hamilton’s biography was the comment the French Foreign minister made seeing Alexander Hamilton, one of the most important officers in the country, working late by candlelight in order to earn outside money to support his wife and children. Only in America, he said, could such a scene be possible. In any other country the Treasury Secretary would have simply embezzled what he needed from the public fisc. Our country would have taken a very different turn if the old-money people had been able to succeed in using ethics rules to keep people like Hamilton disqualified from holding office. We should hesitate before interpreting ethics rules in a way that would permit the embezzling classes to rule unchallenged by those who work for a living.

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