//  7/10/17  //  In-Depth Analysis

The Foreign Emoluments Clause prohibits the President, “without the Consent of the Congress,” from “accept[ing] any present [or] emolument . . . of any kind whatever, from any king, prince, or foreign state.”  The purpose of the clause is to prevent corruption and foreign influence of our government, and the clause fulfills this purpose by subjecting benefits flowing from foreign states to U.S. officials to a process of explicit congressional approval.  By prohibiting emoluments from being “accept[ed]” unless and until consent is provided, the clause provides a default protection against foreign influence absent positive approval by Congress.  In short, congressional inaction creates an absolute constitutional bar. 

Unfortunately, the President appears to be violating this constitutional duty, prompting almost 200 Members of Congress to file a lawsuit demanding that the President submit any benefits he has been receiving to Congress for a vote.  Given the plain text and purpose of the clause, one might imagine this to be an easy legal question.  The text explicitly bars the receipt of benefits prior to congressional approval and the lawsuit aligns with this purpose, demanding only the opportunity for Members to provide (or withhold) that constitutionally required consent.

Yet, some question whether the congressional plaintiffs have standing based on one specific case: Raines v. Byrd.  In Raines, a group of Senators and Representatives brought a lawsuit claiming that the Line Item Veto Act—which Congress had passed over their nay votes—was unconstitutional because it diluted their legislative power.  In a recent post, Eric Segall distinguished the facts and legal issues in Raines from those in the congressional emoluments case and made a convincing argument for why Raines does not apply on its own terms.  But there may be an even more fundamental reason why Raines should not stop the congressional emoluments case from going forward.

As the Raines Court observed, “the law of Art. III standing is built on a single basic idea—the idea of separation of powers.”  The decision revolved around this structural principle and was animated by a respect for judicial boundaries and the need to let the political process play out with each branch fulfilling its constitutionally assigned role. 

In the congressional emoluments case, respect for structural concerns leads to the opposite result.  Failing to accord standing would undermine separation-of-powers principles; draw each branch beyond its proper constitutional sphere; and allow the Executive, the Legislative, and the Judicial branch to shirk their constitutionally assigned duties.

The Executive Branch

The most obvious breach of branch boundaries comes from the Executive and undergirds both legislator standing and the merits of the case.  The Emoluments Clause creates an express right to consent and prohibits the President from “accept[ing]” emoluments absent that congressional authorization.  This prohibition plays a distinct structural role in the separation of powers, providing a default rule that strictly guards against corruption, but allowing for Congress to permit some exceptions to the extent flexibility may be warranted by unique circumstances. 

By accepting an emolument and declining to submit it to Congress, the President circumvents the structural requirement entirely, destroys an explicitly assigned congressional role, and wholly nullifies the plaintiffs’ opportunity to provide or withhold consent.  This is no “abstract dilution of institutional legislative power” as in Raines—here, unlawful executive action deprives the Members of a co-equal branch of their expressly defined constitutional rights altogether.

The Legislative Branch

But what of the fact that Congress as a whole is not suing?  In Raines, the Court “attach[ed] some importance to the fact that appellees ha[d] not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose[d] their suit.”  Some read this to mean that one or both Houses of Congress must authorize a suit when legislators sue regarding injuries to their rights as Members.  That is not—and cannot be—the case. 

As an initial matter, the Raines Court clearly did not adopt such a rule.  (It would have been a pretty short opinion if it had.)  More importantly, such a hard-and-fast rule would be in tension withseparation-of-powers principles in its own right. In fact, some of the same cases cited by the Raines Court for historical support were cited five years earlier in New York v. United States for another proposition: “The Constitution’s division of power among the three Branches is violated where one Branch invades the territory of another, whether or not the encroached-upon Branch approves the encroachment.”

If Article III standing “is built on . . . the idea of separation of powers,” then standing should not be denied to legislators in all cases solelybecause a majority of legislators would prefer to silently accede to “the departure from the constitutional plan.”  Under New York, “[t]he constitutional authority of [the President] cannot be expanded by the ‘consent’ of the governmental unit whose domain is thereby narrowed.”  “[T]he separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch” to “reduce the risk of tyranny and abuse” and to protect the liberty of the citizenry. 

As the Supreme Court recognized in New York, “the facts of [a] case [may] raise the possibility that powerful incentives might lead both [sets of] officials to view departures from the [Constitution’s] structure to be in their personal interests.”  When delicate, controversial, or politically explosive questions are raised, it may “be in the political interest of each [branch] to avoid being held accountable to the voters for the choice.”  In such situations, “[t]he interest of public officials thus may not coincide with the Constitution’s inter[branch] allocation of authority.” 

Here, the President has a “powerful incentive” not to disclose the benefits he is receiving and not to submit them to a vote in Congress where voters will have an opportunity to assess them.  The majority in Congress has a similar “political interest” in avoiding a scenario wherein they must choose between casting a vote against a President from their own party or responding to their constituents’ concerns.  Allowing the Executive and the Legislature to avoid accountability before the voters by jointly circumventing one of the Constitution’s express structural checks would implicate the Judiciary itself in the unconstitutional collusion.

To be sure, there is a difference between asking whether an action violates separation-of-powers principles on the merits and asking whether a plaintiff has standing, as the Court would go on to demonstrate in Clinton v. City of New York by striking down the Line Item Veto Act in response to another challenge with different plaintiffs.  The separation-of-powers concerns involved in a standing dispute, one might object, are more narrow and specific: “keeping the Judiciary’s power within its proper constitutional sphere.”  The political branches may be inappropriately intermingling on the merits, but if the courts can step back, avoid answering the question, and let the political process play out, why shouldn’t they?

The Judicial Branch

In Raines, the Supreme Court’s constitutional obligations aligned with its practical interests: both weighed against judicial involvement given the facts at hand. The majority opinion discusses the dangers of “unnecessarily plung[ing] [the federal courts] into [a] bitter political battle being waged between the President and Congress” and observes that judicial restraint “maintain[s] public esteem for the federal courts.”  The concurring opinion is even more explicit.  After critiquing the majority’s articulation of standing doctrine and pointing out that “the significance of [a legislator suing for a personal versus an official harm] is not so straightforward,” Justices Souter and Ginsburg “resolve[d] the question under more general separation-of-powers principles.”  The concurring Justices acknowledged that “the Judicial Branch [need not] shrink from a confrontation with the other two coequal branches,” but counseled caution when intervention might unnecessarily “risk damaging the public confidence . . . by embroiling the federal courts in a power contest nearly at the height of its political tension.”

Put simply, there may be times when it is the Court’s constitutional duty to grant standing to legislators and reach the merits of the question, but Raines was not such a time.

The majority and concurring Justices pointed to two key elements that weighed against judicial intervention in the case, noting that “Whether the case would be different if any of these circumstances were different we need not now decide.”

First, the circumstances in Raines made it possible to dodge the constitutional question, avoid unnecessary judicial entanglement, and let the legislature engage in self-help.  The majority noted that “our conclusion [does not] deprive[] Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach).”  If Congress wanted to prevent the President from exercising the authority that Congress itself had provided by law, all it had to do was exercise its legislative prerogative and take the authority back. 

Here, the plain text of the Emoluments Clause means no such remedy can exist.  The provision prohibits the President from accepting emoluments when faced with congressional inaction.  For the Court to require legislative self-help as a matter of standing doctrine would render the clause itself superfluous contrary to fundamental interpretive principles.  Moreover, the Founders’ specific structural regime absolutely bars the receipt of any benefits unless a simple majority says “yes.”  Requiring congressional self-help would create a system wherein the President—through his veto power—could receive benefits from foreign countries until two-thirds of both Houses said no.    

Second, the Raines majority noted that its decision did not “foreclose[] the Act from constitutional challenge” by some other plaintiff.  The concurring opinion relied heavily upon this fact, taking the unusual step of calling another suit by a private plaintiff “certain.”  While there is no shortage of legal arguments to support standing for the other plaintiffs who are bringing suit under the Emoluments Clause, the Department of Justice has formally challenged the standing of private plaintiffs in court already and one imagines they will do the same for the Attorneys General and Members of Congress.  If the Government refuses to recognize any of them, it must concede that this fact distinguishes Raines.

Moreover, different types of plaintiffs may allege different standing theories that cover different categories of harm.  The fact that a private plaintiff may allege unlawful competitive harm from unconstitutional hotel bookings does not mean such a plaintiff can rectify the full gamut of potential Emoluments Clause violations, including rent payments, foreign trademarks, overseas development permits, and more.  A bejeweled snuff box does not threaten competitive harm to American businesses, but it certainly gives rise to dangerous influences that the Founders sought to curtail.  Their work makes clear that Congress must evaluate and vote on those risks before the snuff box is formally accepted—not after.

In other words, the same separation-of-powers concerns and practical considerations that counseled in favor of judicial restraint in Raines demand judicial resolution here.  While either factor might support standing, their combination makes the case particularly compelling: if Congress has no legislative remedy and no party has access to a judicial remedy, then the Emoluments Clause is a dead letter.  For the Court to extend the reach of Raines to the present case, it would have to go beyond more than just the facts of that case—the Court would have to elevate its own judicial construction of the Case or Controversy Clause above the plain text of the Emoluments Clause and the separation-of-powers principles themselves.  Raines requires no such thing, and the Constitution does not permit it.

*          *          *

To dismiss the congressional emoluments case on standing grounds would certainly be in the “political interest” of each of the three branches.  The President would not need to submit the things of value received from foreign bodies to public scrutiny.  The Congress would not need to evaluate the delicate questions of loyalty and propriety thus raised and would not be accountable to the public for their votes.  The Supreme Court would not need to interpret a heretofore obscure clause of the Constitution and could avoid the uncomfortable pressure of weighing in on an issue of great public interest.  It would be as if the Clause did not exist at all…  

But these are duties that the Constitution imposes, and it is the public—for whom the checks and balances were crafted—that would suffer if they were ignored. 

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