Daily Archives: December 8, 2016

Emoluments Clause Unlikely to Curb Trump’s Overseas Entanglements

Professor Brendan Beery

Professor Brendan Beery

Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery, clarifies a complicated concept in today’s political arena. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media.

Even seasoned constitutional lawyers haven’t given much thought to the “Emoluments Clause” in Article I, Section 9 of the US Constitution. Donald Trump’s presidency might change that.

The evidence is mounting that Trump and his children stand to gain financially from Trump’s presidency. 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 the clause means 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.

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 conduct. And if anybody is harmed by Trump’s conduct, it would likely be all of us. 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 facilitate the airing of widespread rancor.

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) political question if there are no manageable standards for deciding the case; if deciding the case would be imprudent and cause embarrassment; or if the issue presented in the case is committed to a branch (or branches) other than courts under the text of the Constitution.

Let’s take a hypothetical example. Suppose the U.S. has a mutual-defense treaty with Mexico that requires the U.S. to treat an attack on Mexico by any other country as an attack on the United States itself, requiring a full-scale retaliatory strike. Now suppose that Guatemala starts launching raids across the Mexican border, taking out a drug cartel here and there, but doing little more. Mexico declares itself at war with Guatemala, invokes the treaty, and asks that the United States flatten Guatemala. The U.S. 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, no court has ever developed any legal rules for resolving such a case. And even if a court were to try, 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. Although the claim involves a question, it is not a legal but a political question.

Second, imagine a commanding officer on scene. In one hand, she has an order from the president to stand down. 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 position? 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, 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 and Article II makes the president the commander-in-chief. Article III, the part of the Constitution about courts, says nothing about foreign affairs and war-making. The question is textually committed to both of the other branches of the federal government.

Let’s apply these principles to a suit against the president to enforce the Emoluments Clause. First, we’ve never had a president before who either a) owns and licenses properties all over the globe, or b) openly conducts personal business with foreign power brokers while also conducting the business 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?

Second, federal courts are unlikely to add to whatever embarrassments a Trump presidency will generate without any help from the judicial branch.

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.” A court will likely read that phrase as signaling a textual commitment of this question to Congress, not courts. If Congress wants to allow the president to corrupt U.S. 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. Conveniently, Congress, unlike courts, has a ready-made remedy at its disposal: impeachment and removal from office.

Federal courts will not intervene in Trump’s foreign entanglements under the guise of enforcing the Emoluments Clause; they won’t want to get involved, 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.

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