Cross-posted from Balkinization

Here’s a brief note on two things that struck me on a quick read of the government’s motion to dismiss in CREW v. Trump, filed yesterday.  The first is about Mississippi v. Johnson, which the government cites as limiting the power of courts to grant injunctions against the President.  The second is about the government’s more general claim that the only proper relief for an emoluments violation is political rather than judicial.

The “Johnson” in Mississippi v. Johnson was, of course, President Andrew Johnson, and the suit sought to enjoin him and other officers of the executive branch from enforcing two key statutes enacted by the Reconstruction Congress.  One of the curiosities of the case, of course, was that Johnson had no desire to enforce those Acts, which had only become law over his vetoes.  The suit was really aimed at U.S. Army officers then exercising authority in the South.  Still, President Johnson was a named party in the case, and the Supreme Court refused to issue the injunction.  (A pedantic point: the case was decided in 1867, not in 1866 as the government’s brief indicates.  But this is a common error, arising from the fact that the case report begins with the words “December Term, 1866.”  The mistaken inference that the case was decided in 1866, rather than several months later, reflects nothing worse than a failure to read the facts of the case and a limited familiarity with the history of Reconstruction.)  

The government now cites the case as standing for the proposition that the courts have “no jurisdiction of a bill to enjoin the President in the performance of his official duties.”  Now, as a statement of law, that quoted language is overbroad, as Mississippi v. Johnson itself acknowledged.  But that’s not what’s most remarkable about the government’s use of the case.  What’s striking is that the CREW suit isn’t seeking “to enjoin the President in the performance of his official duties” in the first place.  It’s seeking an injunction requiring the President to divest himself of property that he personally owns.  Neither President Trump’s ownership of those properties nor his divestment from them would be an act taken in the performance of the President’s official duties.  Sure, his constitutional obligation to divest arises from his status as President: the Emoluments Clause applies to him because he is a government official.  But the suit isn’t asking for an injunction forbidding him to execute a law (as in Mississippi v. Johnson) or compelling him to do so.  It’s asking for an injunction to make him to sell off some hotels and restaurants.  It’s true, of course, that Trump is being sued “in his official capacity,” as the caption of the case indicates.  But a suit against an official in his official capacity is not always the same thing as a suit seeking to enjoin that official in the performance of his official duties, as that category is used in Mississippi v. Johnson.  The CREW case is the former but not the latter, and the government’s brief completely elides the distinction.  (And, it occurs to me, the government’s brief on this point also has the effect of analogizing President Trump to President Johnson, which perhaps is not what the White House most wants at this moment.  But I digress.)

The second thing that struck me on a quick read of the government’s motion was the argument that the only remedies for Emoluments Clause violations are political rather than judicial.  That is, the government contends that relief must come from the electorate, which can retaliate against the President for his misbehavior, or, more realistically, from Congress.  As an initial matter, it’s not crazy to think that this is the sort of constitutional rule that should be policed by Congress rather than by the courts.  The rule stated in the Foreign Emoluments Clause specifically makes Congress the judge of the permissibility of an officer’s accepting an emolument: it provides that no officer shall accept an emolument from a foreign government unless Congress consents.  So if the Constitution directs that Congress should sit in judgment on such matters, one might think that the problem is one for Congress to sort out.  

The trouble with this logic, though, is that it gives officers receiving emoluments an incentive for noncompliance.  The reason why goes to the burden of inertia in the legislative process.  The Emoluments Clause says that the officer may not accept an emolument without congressional consent.  On the standard (and I think correct) reading, that means that Congress must affirmatively agree to permit the emolument by voting to grant the permission.  The burden of legislative inertia therefore weighs against any particular officer’s being able to accept any particular emolument: only if Congress gets off its keister and grants permission will the emolument be permissible.  But if an officer knows that the only redress against him for violating the Clause must come from Congress, then he or she also knows that he or she can flip the burden of inertia simply by keeping the emolument rather than asking for permission first.  If there will be no enforcement except from Congress, the burden of inertia favors the officer who doesn’t seek permission, and if Congress doesn’t bestir itself to act the officer will end up keeping the emolument.  It’d be odd for the rule to incentivize the governed parties this way.  

The problem is particularly acute when the official in question is the President, who has powerful tools for preventing Congress from acting, including not just his status as leader of a political party (not foreseen by the drafters of the Emoluments Clause) but also the veto power (completely known to them). Consider: If a President behaves properly and asks Congress “May I keep this emolument?”, he must overcome the burden of legislative inertia.  But if the President just keeps the emolument, Congress to enforce the Clause must not only overcome interia and vote to do something by a bicameral majority but might even have to do so by veto-proof supermajority.  After all, whatever vote Congress would take by way of trying to punish a President for an emoluments violation would presumably be subject to veto just like any other congressional action with force of law, and a President who wanted to keep his emoluments could signal to Congress not to bother unless it had the votes to overcome a veto.  So by thumbing his nose at the rule, the President would get to change the proportion of Members of each House of Congress that he’d need on his side of the question from a majority in each House of Congress to one-third plus one in just a single House.

In light of this set of problems, deeming Congress the only enforcer of the Clause seems considerably more problematic.  And the natural solution is to let courts enforce the Clause—as they do with most other constitutional rules, after all.

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