By Zachary Clopton, Assistant Professor, Cornell Law School

The President, without the consent of Congress, accepts an emolument from a foreign state. What next?

The answer is judicial intervention, say recent lawsuits from private citizens, government bodies, and members of Congress.

The merits of their allegations have been—and continue to be—thoroughly ventilated by others. This post addresses two issues related to whether these cases are appropriately handled by the federal courts at all, i.e., justiciability.

Standing

To coin a phrase, questions of justiciability may be specific or general. They may depend on the particulars of a specific plaintiff, or they may arise because of some general feature of the claim asserted.

Perhaps the most well-known type of specific-justiciability issue is standing. As Richard Fallon has explained, standing law has fragmented along many dimensions. On one such axis, the law of standing for private citizens, U.S. states, and members of Congress varies, even when these plaintiffs are asserting overlapping interests.

In the current emoluments suits, each set of plaintiffs has articulated particular claims to standing: (i) private plaintiffs allege pocketbook injuries arising from lost business, as well as the costs incurred monitoring and responding to alleged malfeasance; (ii) Maryland and D.C. allege injuries to themselves and their residents forced to compete with entities tied to the President, as well as sovereign injuries connected to their taxing power and status in the union; and (iii) members of Congress allege injuries to their ability to evaluate and consent to the receipt of emoluments.

Rather than addressing these arguments individually, I would like to consider their combined force. Richard Primus, Michael Dorf, and others have suggested that the Executive’s arguments that the private plaintiffs’ lack standing in their emoluments lawsuit imply general non-justiciability. By lining up private, state, and congressional plaintiffs, these lawsuits make the issue explicit. Were the Executive to argue that each class of plaintiffs lacked standing, the only fair conclusion would be that the Executive believes that emoluments issues are non-justiciable in general.

That feels different—and it is. Putting these cases together forces the DOJ to decide whether it is comfortable ratcheting up its argument to general non-justiciability, and it means that judges cannot pretend they are deciding anything but general non-justiciability in these cases.

It is possible, of course, that these claims fail on the merits—that plausible allegations of Emoluments Clause violations are not borne out by the facts. But that is a different matter than saying a court may never decide the issue for itself.

(Perhaps, you say, there is a hypothetical private plaintiff with an even better standing claim. Were I a judge hearing these cases, I would press the Executive to describe what this plaintiff might look like. And were I a lawyer litigating these cases, I would listen closely to that description and find a suitable plaintiff to add to the suit.)

Justiciability

Taken together, the threshold issue in these cases will be whether the Emoluments Clauses are justiciable in general.

At least with respect to foreign emoluments, a potential violation may be authorized by the consent of Congress. At first glance, subjecting a constitutional limit to congressional consent seems to suggest that the issue may be the type of political question best handled outside of court—and thus non-justiciable in general.

This intuition is wrong for a number of reasons. For one thing, congressional plaintiffs show why this provision is hollow without judicial review. Their suit is predicated on the fact that they have never been given the opportunity to review the President’s receipt of emoluments in order to give (or withhold) consent. As Richard Primus suggested, the structure of this arrangement would incentivize Executive noncompliance unless the clause were justiciable.

I would like to add an additional argument: There are other “consent of Congress” clauses in Article I of the Constitution, and federal courts have understood those clauses to be justiciable. Consider the Tonnage Clause. I am sure readers are deeply familiar with this provision, but just in case, Article I, Section 10, Clause 3 begins: “No State shall, without the Consent of Congress, lay any Duty of Tonnage . . . .” In brief, the Tonnage Clause prohibits states from limiting commerce by taxing the vessels used for transportation of imports or exports without the consent of Congress

In 1999, the city of Valdez, Alaska, imposed a tax that essentially fell only on oil tankers. A tanker owner sued, and in 2009 the Supreme Court held that the tax violated the Tonnage Clause. Although the opinion was fractured, not a single justice questioned the justiciability of this provision.^[1] In another Tonnage Clause case, the Second Circuit sided with private plaintiffs asserting that the Bridgeport Port Authority’s passenger fee was unconstitutional. Again, no issue of general justiciability was discussed.

In this respect, the Tonnage Clause is not unique. The Import/Export Clause prohibits states from taxing imports or exports without congressional approval. For example, the Fifth Circuit sided with private plaintiffs by holding that Alabama’s tax on jet fuel ran afoul of this provision. Justiciability was no object. Consent of Congress is also required for interstate compacts. For example, the Supreme Court heard a challenge by private plaintiffs to the Multistate Tax Compact (MTC) as violating the Interstate Compact Clause because Congress had not approved the MTC. The Supreme Court rejected the challenge on the merits, but again it did not suggest that such challenges should be non-justiciable. Other Interstate Compact Clause challenges have similarly avoided justiciability problems.

And these are not new-fangled interpretations of old constitutional provisions. A number of 19th century cases adjudicated claims under these clauses too.

All of this is to suggest that congressional-consent clauses are not inconsistent with justiciability. Indeed, dozens of cases suggest exactly the opposite. Holding that the Foreign Emoluments Clause is generally non-justiciable because it is subject to the consent of Congress, therefore, would put these cases in jeopardy.^[2]

Conclusion

Let me conclude by going back to the 18th century. In Chisholm v. Georgia, the first United States Attorney General, Edmund Randolph, commented on the enforcement of some of the aforementioned constitutional limits.

Arguing in favor of jurisdiction over state governments, Randolph cataloged actions “expressly prohibited by the Constitution,” and he specifically mentioned violations of the Tonnage and Import/Export Clauses without congressional consent. Randolph then explained that states must be subject to jurisdiction in order to enforce exactly these requirements:

Are States then to enjoy the high priviledge of acting thus eminently wrong, without controul; or does a remedy exist? The love of morality would lead us to wish that some check should be found; if the evil, which flows from it, be not too great for the good contemplated. The common law has established a principle, that no prohibitory act shall be without its vindicatory quality; or, in other words, that the infraction of a prohibitory law, although an express penalty be omitted, is still punishable.

The same logic should apply to the Emoluments Clause. The President may have committed prohibitory acts without the consent of Congress, and the infraction of a prohibitory law, although an express penalty be omitted, is still punishable.

The love of morality would lead us to wish that some check should be found. In the current emoluments suits, we may have found that check.

^[1] Admittedly, the Valdez case was first adjudicated in state court, which may undercut some justiciability arguments, but other Tonnage Clauses cases have been filed directly in federal court.

^[2] Courts have also entertained challenges under Article IV’s provision requiring the consent of affected state legislatures for the admission of new states. For example, Rhode Island (supported by ten other states) sued the federal government over the creation of Indian country as violating the Admissions Clause without state consent. The First Circuit treated this as justiciable, but rejected the suit. See Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007).

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