emoluments clause

Supreme Court Denies Certiorari in Blumenthal v. Trump

Petitions for certiorari in the other two Emoluments Clause cases remain pending.

|The Volokh Conspiracy |

Today the Supreme Court denied certiorari in Blumenthal v. Trump, one of three cases concerning President Trump's alleged violations of the Foreign Emoluments Clause pending before the Court.

In Blumenthal, the U.S. Court of Appeals for the D.C. Circuit concluded in a brief per curiam opinion that members of Congress lack standing to sue President Trump over his alleged receipt of foreign emoluments. As I noted here, this was an easy call under existing precedent.

this suit was clearly barred by existing Supreme Court precedent, Raines v. Byrd in particular. In Raines, the Supreme Court concluded that individual members of Congress lacked standing to challenge the constitutionality of the Line-Item Veto Act. In Blumenthal, the D.C. Circuit recognized plaintiffs' efforts to argue around Raines were completely unavailing, particularly in light of subsequent decisions.

The Court took no action on the other two pending Emoluments Clause cases (from the U.S. Courts of Appeals for the Fourth and Second Circuits). This is no surprise, as the briefs in opposition to the Justice Department's cert petitions are not yet due. One consequence is that these cases could be rendered moot, depending on the outcome of the election.

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  1. So, who would have standing to challenge the president under the Foreign Emoluments Clause?

    And how many years would it take to wind its way through the courts before any action would be taken?

    So, effectively, the court has declared the Foreign Emoluments Clause unenforceable, which is to say null and void.

    1. “So, who would have standing to challenge the president under the Foreign Emoluments Clause?”

      Per the decision, probably Congress. Binding SCOTUS precedent says that individual members of Congress do not have standing to assert institutional interests. Although in my view SCOTUS should stay out of disputes between Congress and the President entirely.

      1. So, lets stipulate that a suit was filed with the 116th United States Congress as the plaintiff. Question: when this body dissolves on Jan 3 2021, wouldn’t the case become moot?

        And if the 117th congress filed a similar suit on Jan 4 2021, what are the chances that any result would obtain before it dissolves on Jan 2 2023?

        1. No, the case would not become moot. Congress is not dissolved every new session, and the filing entity is not a session of Congress, but Congress.

          1. I hope you’re right about this. Seems I read it somewhere, but don’t remember where.

            So, it would have to be the House *and* Senate bringing suit, or would one body be sufficient?

            1. Don’t know. Current precedent is that individual members generally don’t have standing (with only exception that I’m aware of being Coleman v. Miller). The Bipartisan Legal Advisory Group, which was created in the House in 1993, asserted its right to intervene in Chadha v. INS and US v. Windsor. I don’t recall whether Chadha said they had standing or not. In US v. Windsor the majority declined to decide it. Alito filed a dissent saying that BLAG had standing. Scalia wrote a dissent (joined by Chief Justice Roberts and Justice Thomas) arguing that there was no Article III Standing and that BLAG didn’t have it. That case presented case or controversy issues separate from whether one or both houses would have standing in any case.

    2. Congress can impeach if there is a violation. That is the Constitutionally proscribed procedure for enforcement.

      1. And the chances of a successful impeachment happening?

        Nada.

        So, as I said, null and void. Or in the words of Al Gore “No controlling legal authority.”

        1. I think you’re misusing the phrase “null and void” here.

          1. From https://www.merriam-webster.com/dictionary/null%20and%20void

            Null and void: having no force, binding power, or validity

            If there is no method of enforcing the Foreign Emoluments Clause, then it has “no force” or “binding power”.

            The situation as it stands is that the president can violate the constitution with impunity, and as long as the courts are indifferent and he has a 1/3 minority support in the Senate, nothing will stop him. That’s where we are as a country.

            And there are a lot of folks around here who won’t like it one bit when the shoe is on the other foot.

            1. “If there is no method of enforcing the Foreign Emoluments Clause, then it has “no force” or “binding power”.”

              1) Your argument was that a successful impeachment was unlikely because “there is no method of enforcing” the clause. If impeachment is the method, there is a method of enforcing the clause.

              2) As to the likelihood, two presidents have been successfully impeached in my lifetime, so I think you’re wrong about the likelihood of a successful impeachment being “Nada”.

              3) Impeachment is not the only method of enforcing constitutional provisions. Nor are judicial cases. Voters decide constitutional issues, too.

              1. “As to the likelihood, two presidents have been successfully impeached in my lifetime,”

                No. In the entirety of US History, bills of impeachment have been issued against three presidents.

                All three impeachments failed in the Senate.

                Zero US Presidents have been removed from office by impeachment.

                1. Right. The only federal officers who have been successfully removed from office via impeachment have been politically weak, e.g. Walter Nixon.

                  It remains a completely ineffective method of controlling anyone who maintains some minimal level of political support.

                  The idea that “impeachment is the method” is completely laughable after watching a majority of the Senate put their fingers in their ears and say “la la la I can’t hear you.” Are you fucking serious?

                  1. Perhaps the fact that the same House that impeached Trump elected not to include articles related to these putative emoluments says something about the validity of the complaint?

                    1. The articles of impeachment were deliberately crafted to be as narrow as possible to avoid accusations of a “kitchen sink” approach. So the fact that some matters were omitted is orthogonal to whatever merits they may or may not possess.

                2. I didn’t say two presidents have been removed from office in my lifetime. I said two of them have been impeached. Impeachment is just the process through which the House levels charges against government officials (like the President).

                  1. To many, a “successful impeachment” would result in a conviction or, as with Nixon, a resignation to avoid the trial. The Johnson, Clinton and Trump impeachments resulted in trials, but no convictions. What prosecutor considers 0 for 3 at trial “success?”

      2. If that is true, there is no reason for an Emoluments Clause — it is “surplusage”.

        Violations of the Constitution are for the federal courts to decide.

        1. “Violations of the Constitution are for the federal courts to decide.”

          Its a political question given to Congress to enforce.

        2. There are a lot of constitutional bases for the Supreme Court to refuse to intervene even when Congress or the President is alleged to have violated the Constitution. The political question doctrine is a prominent one.

          1. So all a President needs is one chamber of Congress to be controlled by his party, and compliant to his wishes, and the explicit constitutional restrictions on presidential powers are meaningless. Because of the political question doctrine. Because the judiciary suddenly can’t decide questions of constitutional meaning when the president is involved.

            1. Basically right, but the president doesn’t need “…e chamber of Congress to be controlled by his party…”

              He only needs one third of the Senate and the laws don’t matter, despite all the lofty rhetoric of “law and order” conservatives.

              It’s like jury nullification on steroids.

            2. If the president can get enough other government officials to decide not to hold them accountable for constitutional violations, then yes: the president can violate the constitution with impunity. I’m not really sure how you avoid that reality.

              1. Well, my point is that the Judicial branch could rule on the constitutionality of Presidential actions. Just as they do for acts of Congress. But for some reason, when it is the President acting, a judicial ruling on constitutionality is suddenly out of bounds because of the political question doctrine. It’s like the Marbury ripple has evolved into a tidal wave of judicial cowardice.

                1. Sure, SCOTUS could rule on the constitutionality of presidential actions. But you’ve posited a scenario where Congress and the President acquiesce to the unconstitutional act. There isn’t even a tie to be broken by the Judiciary; unconstitutionality is winning. And who cares what the Judiciary says? As Scalia noted in his dissent in US v. Windsor:

                  “If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “… or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by … what do you think? Yes: a direct confrontation with the President.”

            3. 1) They are not “meaningless”. Voters can enforce constitutional provisions too.

              2) The “judiciary” does not wield a magic wand with the power to stop presidents from behaving unconstitutionally. The fact that they can decide a question doesn’t mean they should, and the fact that they do decide a question doesn’t mean it has any force. One reason for the political question doctrine is to preserve the Court’s integrity by discouraging it from picking fights it can’t win.

        3. What remedy would be available to Blumenthal in this case if the courts DID find for him?

      3. Couldn’t the congress just pass legislation either addressing emoluments generally, or specifically, an alleged emolument which it finds offensive?

        1. If Congress doesn’t explicitly give the President permission to accept an emolument, the President cannot accept it. Now we just have to agree on what an emolument is. The definition seems strangely dependent on the political party of the President in question.

  2. Why would these cases be rendered moot by the election? These are not impeachment proceedings, therefore, the available remedy is not removal from office. These are … Actually, I haven’t paid enough attention to know whether they are civil or criminal proceedings but either way, such cases would normally continue regardless of the offender’s status in office.

    1. It’s up to Congress as a whole to enforce via impeachment, not court action.

    2. “such cases would normally continue regardless of the offender’s status in office.”

      What remedy is available? Trump cannot violate it once he leaves office.

    3. IANAL, but the obvious remedy would seem to be requiring him to return all the “emoluments” to the entities that gave them. Possibly with interest and penalty. You know, like if you don’t pay your taxes.

      Seems to me that if the constitution says “you can’t have this” it means you can’t keep it.

      1. “IANAL, but the obvious remedy would seem to be requiring him to return all the “emoluments” to the entities that gave them.”

        But that get’s you back to a standing issue. General tort law, A does not have standing to Sue B to recover money for C.

        What you describe is not a remedy for the plaintiff in an emoluments suit.

  3. “It puts the emoluments on its skin, or else it gets the hose again.”

  4. Let’s hope we have a better class of person in the White House for a while, attenuating concerns about emoluments issues to a more customary level.

    #ThreeWeeks

    #ThreeMonths

    See you boys further on up the road a bit.

    1. There is zero chance of having a better person in the White House next term. No such person is running.

      1. If you do not believe Joe Biden is a better person than Donald Trump, you must be a disaffected, vanquished, bigoted clinger with no moral compass.

        Open wider, Matthew.

        #ThreeWeeks

        #ThreeMonths

        #TheReckoning

        1. Biden is a *different* sort of scumbag, not a *better* sort of scumbag.

  5. Jew boy Blumenthal from Connecticut, wasting time and money on political theatre, while distracting the Nutmegs from their miserable existence due to the democrats cesspool. Blumenthal only acts on direction of the jews from New Haven, so it is not like it came from the people of Connecticut.

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