The Volokh Conspiracy
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The Emoluments Clauses Litigation, Part 7: The President's Acceptance or Receipt of Profits is not "Executive Action"
Throughout the Emoluments Clauses litigation (See Parts 1, 2, 3, 4, and 5), we have made three primary arguments in amicus briefs filed with federal district courts in New York, the District of Columbia, and Maryland: (i) that the payments at issue are not "emoluments"; (ii) that the President is not bound by the Foreign Emoluments Clause and its "Office . . . under [the United States]" language; and (iii) 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 such, the complaints were each improperly pleaded.
As we noted in the sixth part of this series, the Department of Justice ("DOJ"), which is defending the President, has failed to argue that the complaint was improperly pleaded. To the contrary, DOJ has maintained that this case is properly pleaded as an official capacity suit.
In the oral argument in the Maryland action, the government lawyer insisted that the President's acceptance of emoluments constituted "executive action." (Just to be clear: neither the DOJ nor we have conceded that payments involving business transactions for value constitute constitutionally forbidden "emoluments;" likewise, we have argued that the presidency is not encompassed by the Foreign Emoluments Clause's office … under the United States language.) Judge Messitte, like everyone else in the court room, other than those sitting at defense counsels' table, seemed very confused by Plaintiffs' position and the DOJ's (apparent) concession: i.e., that the President's purported illegal conduct is properly pleaded as an "official capacity" action. We do not (yet) have a transcript available, but the Court's questions suggested that Trump's business transactions, i.e., his accepting or receiving purported emoluments, actions which do not involve any federal government policy, could not be meaningfully characterized as "executive action." We agree. Indeed, even amici supporting Plaintiffs (at 12) acknowledged this very point.
When Trump (or a commercial entity Trump owns, in whole or in part) receives or accepts profits or payments, Trump's receiving or accepting those profits or payments do not involve "executive actions" or government policy. In other words, Trump is not acting in an "official capacity" when accepting these disputed profits. The parties' position fundamentally misunderstands how our constitutional structure applies to federal officers in their official capacity, as opposed to federal officers in their individual or personal capacity.
Two decades ago, Professor Laurence H. Tribe observed in Constitutional Commentary that there are "two ways, and two ways only, in which an ordinary private citizen, acting under her own steam and under color of no law, can violate the United States Constitution." First, she can "enslave somebody, a suitably hellish act." Why? Because the Thirteenth Amendment, which broadly provides that "slavery" shall not "exist within the United States," applies to private conduct. That is, if a federal officer enslaves a person under a government policy, he is violating the Thirteenth Amendment in his official capacity. Likewise, if a federal officer enslaves a person without regard to any government policy, he is still violating the Thirteenth Amendment, but in his individual capacity. The Thirteenth Amendment operates in both fashions. In an official capacity action, the government is the actual defendant, notwithstanding the fact that the complaint names a government officer as the nominal defendant. The relief sought is typically a declaration or injunction: an order to stop ongoing government illegality. By contrast, in an individual capacity action, the government is not the actual defendant. The defendant is a named officer, and the typical relief sought is damages. In the Maryland action, the Plaintiffs' allegations involving purported violations of the Foreign and Domestic Emoluments Clauses related to private conduct, not official conduct, much less official conduct taken to pursuant to any government policy.
The second way for private conduct to violate the Constitution, Tribe writes, "is to bring a bottle of beer, wine, or bourbon into a State in violation of its beverage control laws." Why? Because under Section 2 of the Twenty-First Amendment, "[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." That is, a violation of a state's prohibition laws is in fact a violation of the Constitution. Consider a scenario where New Jersey prohibits the importation of intoxicating liquors into the state. If the Mayor of New York City distills alcohol in City Hall, and, pursuant to a municipal policy and using municipal cars, ships the liquor from New York into New Jersey, he is violating the Twenty-First Amendment in his official capacity. If the Mayor of Albany, by contrast, brews beer in his bathtub at home, and transports it into New Jersey in his private vehicle, he is violating the Twenty-First Amendment in his individual capacity. Both actions are unconstitutional. But only the prior case would be properly pleaded as an official capacity action.
Though Tribe identified "only" two ways in which private conduct can run afoul of the Constitution, the Emoluments Clauses are (in our view) a third and fourth way.
Consider the the Foreign Emoluments Clause. It provides that those holding "office . . . under the [United States]" cannot "accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State" "without the Consent of the Congress." (Because, in our view, the President is not covered by this clause and its Office-language, we will consider the Secretary of State, who, all agree, is so bound.) First, if the Secretary of State publicly "accept[s]" gifts from a foreign state pursuant to a government policy, or if the Secretary uses federal government property in order to accept the gift, he violates the Foreign Emoluments Clause in his official capacity. Second, if the Secretary, however, privately "accept[s]" gifts from a foreign state without regard to any government policy, and without using federal government property in the process of accepting the gift—that is, as a purely personal gift—then he violates the Foreign Emoluments Clause in his individual capacity. This conclusion is not changed if the gift was motivated by the fact that the Secretary is an officeholder. (Such a gift could also constitute "[b]ribery" for purposes of the Impeachment Clause.) Both courses of conduct by the Secretary are unconstitutional, but only one is properly pleaded as an official capacity suit.
Conceptual clarity is key here. The Twenty-First Amendment prohibits "transport[ing] or import[ing] . . . intoxicating liquor[]" into a state in violation of that state's law. The unconstitutional conduct is the unlawful "transporting or importing." As an evidentiary matter, it may be relevant whether the wrongdoer is paid for the alcohol, or whether the payor is motivated to buy that particular brand of alcohol in order to curry favor with that government officer. But these facts are irrelevant to the determination of whether the conduct is unconstitutional. Nor is the analysis changed one iota because a payor might pay a premium hoping to extract good will in a future deal with that officer or with the government he works for. (Again, above-market-price payments could also constitute "[b]ribery" for purposes of the Impeachment Clause.)
Where a wrongdoer violating the Twenty-First Amendment is a federal officer, his conduct might be challenged in an official capacity lawsuit or an individual capacity lawsuit. What capacity he is sued under does not hinge: (i) on whether his buyers are private individuals or state or municipal officers; (ii) on whether his buyers pay him with state or municipal money or property; or (iii) on whether his buyers are hoping to buy good will involving future transactions with that federal officer or the federal government. It is not the payor's conduct or motivation which determines whether the wrongdoing federal officer should be sued in an official or individual capacity. Rather, it is the conduct of the transporter or importer. If the transporter is a federal officer acting pursuant to an established federal policy or uses federal government property to "transport[] or import[]" the liquor, then it is an official capacity suit. Otherwise, it is an individual capacity suit.
Now consider the Foreign Emoluments Clause. A covered federal officer violates the clause by "accept[ing]" emoluments, gifts, etc., absent congressional consent. Here too, the donor/payor's motive might be relevant to establishing evidence of the federal officer's unconstitutional conduct. The unconstitutional conduct, however, is the recipient's conduct, that is "accept[ance]" of the emolument or gift. In terms of determining whether the federal officer's conduct is unconstitutional, nothing hinges on whether a foreign prince or government officer gave his own private money or his government's money as a gift, and nothing hinges on whether the motive of the gift was to enjoy future goodwill from the federal officer. If the "accept[ance]" by the federal officer falls under the scope of the clause, and Congress has not consented, it is unconstitutional. Here too, the fact that such conduct is unconstitutional does not tell us whether the covered officer should be sued in an official or individual capacity. If the federal officer accepted the purported illegal gifts or emoluments pursuant to some formal or informal, Executive Branch policy, but absent congressional consent, then the federal officer should be sued in an official capacity. Likewise, if the act of accepting the purported illegal gift or emolument made use of federal government property, that is, the sovereign's property, then the federal officer should also be sued in an official capacity. Otherwise, the federal officer should be sued in an individual capacity. These principles are basic. We think these are settled, well established principles, repeatedly announced by the Supreme Court and other federal courts.
The same analysis applies to the Domestic Emoluments Clause, which prohibits official and individual conduct by the President. In the Maryland case, the alleged unconstitutional conduct—Trump's (or his Trump-affiliated entities) "recei[pt]" of proscribed emoluments—is quintessentially private conduct, not official conduct. It is not official conduct because the conduct related to receiving the purportedly proscribed emoluments does not involve any "executive action," any federal government policy, or make use of any government (that is, the sovereign's) property. Hence, these actions cannot be properly pleaded as "official capacity" suits.
During oral arguments in the District of Maryland, counsel for the Plaintiffs represented that they would amend their complaint to include claims against the President in his individual capacity. (They have not done so yet.)
At this stage, we do not know if Plaintiffs amended complaint will bring their claims in the alternative (i.e., official and individual capacity claims) or exclusively as individual capacity claims. There is always the possibility that Plaintiffs will reconsider the position they took at oral argument—perhaps after consulting with their amici federal courts scholars—and choose to proceed with their current complaint, absent any amendment adding individual capacity claims.
Our next post will explain why a complaint against the President in his individual capacity is not likely to succeed: There is no cause of action (implied or otherwise) under which the Plaintiffs can sue.
