There has just been a major development in the emolument clause litigation: CREW, which famously filed the first emoluments case on Trump’s first full day in office, has amended its complaint.  In addition to bringing two new plaintiffs into the litigation—each with distinct and compelling theories of injury—CREW has produced a formidable and detailed list of Trump’s constitutional violations. 

There is a lot to say about this development.  For now, I’ll focus on a recent article with leaked information about how Trump’s lawyers might seek to defend him.

Last week, the New York Times reported DOJ will argue that “the court has no authority under the separation of powers doctrine to intervene; that power lies with Congress.” This suggests that Trump’s lawyers will rely on the so-called “political question doctrine,” which, in very limited circumstances, deprives federal courts of the power to decide constitutional questions.

Such reliance would be grossly misplaced.  Applying the political question doctrine here would require the court to rewrite and invert the plain text of the Foreign Emoluments Clause. It would be nothing short of absurd to deem the Foreign Emoluments Clause a “political question.” Indeed, as I will show in this post, that conclusion would require some heavy editing of the Clause:

[N]o Any Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, may accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, unless Congress is informed and thereafter denies consent.

(I won’t address the Domestic Emoluments Clause, for reasons that will soon become apparent.)

Quick Background

In recent years, the Supreme Court has repeatedly emphasized that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014) (citations omitted).  As Chief Justice Roberts made clear in Zivotofsky v. Clinton, the Court’s latest and most definitive pronouncement on the issue, “courts cannot avoid their responsibility merely ‘because the issues have political implications.’” 132 S. Ct. 1421, 1428 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). This command extends even to cases that the Judiciary “would gladly avoid.” Id. at 1427 (2012) (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)).

The so-called “political question doctrine” is a narrow exception to the rule that courts must hear all cases properly before them.  It applies only in two limited circumstances:

First, “where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department.”  Zivotofsky, 132 S. Ct. at 1427.    

For example, the Court has held that it cannot review the procedures employed by the Senate in an impeachment proceeding, since the Constitution states that the “Senate shall have the sole Power to try all Impeachments” (emphasis added). See Nixon v. United States, 506 U.S. 224 (1993).

Second, where there is “a lack of judicially discoverable and manageable standards for resolving it.”  Zivotofsky, 132 S. Ct. at 1427.

For example, the Court has declined to adjudicate partisan gerrymandering challenges on the ground that it has not yet been able to identify a workable judicial standard.  See Vieth v. Jubelirer, 541 U.S. 267 (2004).

Following Zivotofsky, these are the only relevant criteria. To be sure, under Baker v. Carr, 369 U.S. 186 (1962), the Court once reckoned with a variety of ill-defined “prudential factors” that gave courts more discretion to dodge controversial questions.^[1] But Zivotofsky wholly jettisoned that approach; indeed, the Chief Justice’s brisk opinion neither mentioned nor applied any of the more nebulous and prudential factors from Baker v. Carr, referring only to Baker's more substantial "textual commitment" and "manageable standards" factors.  This turn away from reliance on an avowedly policy-driven approach to matters of justiciability is consistent with the Roberts Court’s pronounced skepticism of prudential limits on its power to hear and decide cases.  See, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).

What Are the Potential Political Question Arguments?

The Foreign Emoluments Clause provides as follows:

[N]o Person holding any Office of Profit or Trust under [the United States], 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.

I have yet to encounter a serious argument that there are no judicially manageable standards here: ultimately, it’s a simple matter of reading the words in the Constitution and deciding whether the payments being given to Trump (through the Trump Organization, which he owns) qualify as “any present, Emolument, Office, or Title, of any kind whatever.”  Giving meaning to plain text is the standard fare of judges.

And as I see it, the only conceivable basis for a “textual commitment” argument is the “Consent of the Congress” provision—presumably on the theory that Congress’s capacity to consent to a foreign emolument (even if never exercised) wholly precludes judicial involvement. (Now you can see why I don’t address the Domestic Emoluments Clause, which has no “Consent of Congress” language.)

But any argument that the “Consent of Congress” language makes this a political question would be at odds with precedent and reason, and must be rejected.

Precedent

To start, the Foreign Emoluments Clause is not the only part of the Constitution to use “Consent of Congress” language.  Consider, for example, Article I, Section 10, Clauses 2 and 3:

Cl. 2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports . . .

Cl. 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

(emphasis added).

Here, too, the Constitution prohibits a particular governmental actor from engaging in specific conduct, unless Congress consents.  Indeed, the structural similarity between these clauses and the Foreign Emoluments Clause is striking.  Yet nobody believes that these clauses present a political question.  To the contrary, the Supreme Court has long adjudicated cases arising under these constitutional provisions.  See, e.g., Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. 1, 6 (2009); Dep’t of Revenue v. James B. Beam Distilling Co., 377 U.S. 341 (1964); Canton R. Co. v. Rogan, 340 U.S. 511 (1951)​; Brown v. State of Maryland, 25 U.S. 419 (1827).  Precedent thus forecloses reliance on the “Consent of Congress” language as evidence of a textually demonstrable constitutional commitment of the issue to Congress.

Precedent is also instructive in another respect: it shows what an actual textual commitment looks like. And the answer is: not like the Foreign Emoluments Clause.  Thus, in Nixon v. United States, the Supreme Court relied on the fact that the Impeachment Trial Clause plainly forbade judicial involvement by vesting “sole Power to try all Impeachments” in the Senate (emphasis added).  See 506 U.S. at 229-231. That is what it means for the Constitution to give one branch, and one branch alone, power over an issue.  The “Consent of Congress” provision has a fundamentally different purpose: rather than preclude judicial adjudication of violations, it specifies circumstances in which Congress can create exceptions to the underlying rule. As a matter of grammar and function, this is nothing like the Impeachment Trial Clause.

Logic

Common sense compels the same result. The “Consent of Congress” provision is most naturally read to mean that without congressional approval, any foreign emoluments that certain federal officials receive are unconstitutional. In other words, the consent provision allows Congress to validate particular, otherwise illegal transactions. Including this power in Article I of the Constitution makes perfect sense if one assumes that that the Clause is judicially enforceable: Congress is empowered to immunize federal officials from potential liability in court. 

But the “Consent of Congress” provision makes no sense at all if the Foreign Emoluments Clause can be enforced exclusively by Congress. In that case, Congress does not need to “consent” to an official’s receipt of foreign emoluments in order to validate them; rather, all it need do is nothing. Put differently, if compliance with the Foreign Emoluments Clause is a political question, then Congress need only exercise its most treasured power—inaction—to effectively validate foreign emoluments.  In practice, there would be no requirement of formal congressional action to affirmatively approve particular foreign emoluments.  They’re all kosher unless Congress gets off its butt and says otherwise.  

Obviously, this would turn on its head the rule of decision set forth in the Foreign Emoluments Clause, which makes clear that foreign emoluments are illegal until Congress explicitly says that they are not by giving consent.

Indeed, read Trump's way, the Foreign Emoluments Clause is astonishingly trivial. Federal courts are totally unable to enforce it. And Congress can enforce it only by specifically outlawing particular transactions (some of which it may not even know about—for instance, if the President won’t release his tax returns). The result is that the President himself has the final word on whether he can receive payments of any kind from foreign powers ... and if he does eventually deign to check with Congress, then that body (a celebrated bastion of do-nothingness) must affirmatively do something to block them.    

As promised above, the result is that the Emoluments Clause looks much more like this:

[N]o Any Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, may accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, unless Congress is informed and thereafter denies consent.

Especially coming from conservatives who have spent years berating us about the endless wonders and wisdom of textualism (and originalism), this argument would be quite embarrassing for DOJ to make. Not only does it devastate the text, but it would wholly eviscerate the basic purpose of the Clause.

Conclusion

In this case as in so many others, Congress’s authority to act and authorize does not mean that its failure to act precludes a judicial accounting of illegal conduct.  

Payments to the President from powers are illegal unless Congress says they are not. So long as Congress remains silent, the President is breaking the law, and injured parties have every right to seek remedy in federal court.  That is the nature of our constitutional system.

Disclaimer: I am not a neutral party.  I've worked closely with many of the lawyers bringing the CREW case and I've co-authored articles about the case with several them (including an article that was the model for this post).  

^[1] Writing separately in Zivotofsky, Justice Sotomayor described the Baker v. Carr factors as follows:

 (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department”; (2) “a lack of judicially discoverable and manageable standards for resolving it”; (3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”; (4) “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”; (5) “an unusual need for unquestioning adherence to a political decision already made”; or (6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

132 S. Ct. 1431 (quoting Baker, 369 U.S. at 217) (Sotomayor, J., concurring in part and concurring in the judgment).

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