New Article with Seth Barrett Tillman on the Emoluments Clauses Litigation

"The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct"

After nearly four years of litigation, the Supreme Court did not decide any of the Emoluments Clauses cases. Thus, many issues were left unresolved. Seth Barrett Tillman and I address two of these issues in a new article, forthcoming in the Georgetown Journal of Law & Public Policy. It is titled "The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct." Here is the abstract.

Shortly after President Trump's January 2017 inauguration, he was sued for violating the Foreign and Domestic Emoluments Clauses. The plaintiffs alleged that Trump's acceptance of profits from foreign and U.S. state governments violated these once-obscure provisions of the Constitution. We filed amicus briefs in these cases, and made two arguments that had implications for separation of powers jurisprudence.

First, the Plaintiffs erred by suing President Trump in his "official capacity." Under settled case law, a government officer violates the Constitution in his official capacity if—and only if—a government policy or custom must have played a part in the violation of federal law. Still, the Plaintiffs never alleged that President Trump acted pursuant to any government policy or custom. Nor did the Plaintiffs allege that Trump acted "under the color of law"—a precondition for pleading an individual-capacity claim. Rather, the case concerned alleged conduct that President Trump took personally. With respect to the Emoluments Clauses, the President has three bodies and can be sued in three distinct fashions: [1] an official-capacity claim involves a government policy or custom; [2] an individual-capacity claim involves action taken by a government officer under the color or law; and [3] a personal claim involves private conduct, absent state action.

We identified a second jurisdictional problem. The Plaintiffs argued that the federal courts had equitable jurisdiction to halt ultra vires action by a government officer. To support this argument, the Plaintiffs contended that federal district courts could issue an injunction—an equitable remedy—against the President. This argument conflated equitable jurisdiction and equitable relief. A plaintiff cannot establish equitable jurisdiction merely by seeking equitable relief. Rather, the plaintiffs must invoke a traditional equitable cause of action that was judicially recognized by 1789, or a cause of action that was created by Congress or the courts. The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires conduct by government officers.

Ultimately, the Supreme Court did not settle these issues, or any others presented by the Emoluments Clauses litigation. After President Biden's inauguration, the Supreme Court vacated the lower-court judgments that ran against the President, and ordered the courts of appeals to dismiss the cases as moot.

As the Emoluments Clauses litigation fades in the rear-view mirror, this Article offers a retrospective of these two unresolved threshold issues. Our article also provides some guidance on how to litigate future allegations that the President personally violated the Constitution.

Our second point is quite relevant for DOJ's litigation against S.B. 8. The federal government lacks an equitable cause of action to challenge an allegedly ultra vires state law. Indeed, DOJ's arguments that it does have such a cause of action is flatly inconsistent with longstanding policy.

We welcome all comments on our article.