Saturday, June 24, 2017

Members of Congress Have Standing in the Emoluments Suit

By Eric Segall

The President of the United States owns a posh hotel in the shadow of the White House from which he derives foreign-government revenue. Along with income and benefits from many other domestic and international businesses, this revenue stream creates the very conflict of interest that the founding fathers wanted to prevent by writing into the Constitution that “no Person holding any Office of Profit or Trust … shall, without the Consent of the Congress, accept … any Emolument … from any King, Prince, or foreign State.”

Members of both the House and the Senate have filed a lawsuit seeking to enforce this provision. These legislators allege that the President has violated their right, guaranteed in the text of the Constitution, to vote on and authorize the President’s acceptance of “emoluments.” They ask that the court require the President to obtain Congress’ consent before accepting benefits from foreign governments or divest himself of all interests in those businesses. Before the court may rule on this case, however, the plaintiffs must demonstrate that they have standing to sue. As a matter of text, precedent, and policy, these plaintiffs should have standing in this case.

The constitutionally required standing elements derive from Article III’s requirement that the judicial power only extends to a “case” or a “controversy.” As a matter of original meaning, there are good arguments that the founding fathers simply wanted to avoid sham or hypothetical lawsuits. There is no doubt that there is a real, live controversy between these members of Congress and the President. 

The Supreme Court, however, has interpreted the vague text of Article III to require that all plaintiffs in federal court show that they have been 1) personally injured 2) by the actions of the defendant and that 3) the relief requested will redress their injury. Like virtually all standing disputes, whether this suit may go forward requires interpreting prior Court decisions and evaluating the practical policy implications of giving the plaintiffs their day in court.

The Supreme Court has decided only two cases where individual legislators sought standing to mount a constitutional challenge. In one decision, the Justices addressed whether individual members of Congress could sue executive branch officials on the ground that a particular federal law was unconstitutionalIn the other, the Supreme Court considered a case where individual members of a state legislature sued because votes they cast on whether to ratify a constitutional amendment were nullified. They alleged they were deprived of their right to vote on the same topic in the future. The Court denied standing in the former and found it in the latter. Although both decisions are relevant, neither case presents identical standing issues as the emoluments lawsuit.

The plaintiffs in Coleman v. Miller were Kansas legislators who voted against ratifying a proposed amendment to the national Constitution. The Lieutenant Governor broke a deadlocked vote on the issue, and the plaintiffs claimed he had no authority to approve the amendment in that manner. The Kansas legislature did not authorize the lawsuit.

The Court found that the plaintiffs had standing because, if their legal arguments were correct, their votes against the amendment were “completely nullified,” and they had no other legal remedy. Coleman stands for the legal proposition that, to have standing, legislators must show that their votes have been rendered nugatory, or that as a result of allegedly illegal executive action they were totally deprived of the opportunity to vote.

The plaintiffs in this case meet this standard because there is no way for members of Congress to vote on the President’s receipt of emoluments without him disclosing those he would like to accept and asking for the required constitutional permission. Members of Congress don’t know the nature or extent of the President’s vast income from foreign countries without him informing them ahead of time, which he has not done. The Constitution unambiguously requires such consent before the President accepts the emolument. Therefore, the right of the plaintiffs to vote on the emoluments has been completely nullified.

Although Coleman supports the plaintiffs’ arguments, it does not mandate standing in this case because: 1) the plaintiffs were state legislators suing a state official, and there may well be different separation of powers concerns when members of Congress sue the President; and 2) it is an old case (1939), and a later Supreme Court decision, Raines v. Byrd, might change or add to the analysis. There are also a few D.C. Circuit decisions that support the legislators’ standing claims, but the reality is that the emoluments lawsuit is likely to land in front of the Supreme Court, which may or may not agree with the lower court decisions.

In Raines, a group of House members and Senators sued executive branch officials, arguing that the Line Item Veto Act was unconstitutional. This law allowed the President to veto new spending and tax relief within five days after he signed a bill into law. The legislators argued that the Act unconstitutionally gave the President the authority to change duly enacted laws after he signed them, and this allegedly illegal “veto” might change “the legal and practical effect” of votes they might cast on future bills. They argued the Constitution only allows the President to sign or veto entire bills, not parts of bills, and the Act violated that principle.

The Court began its analysis by reaffirming its holding in Coleman that legislators have standing to sue executive officials if their votes “have been completely nullified.” The Justices then held the plaintiffs lacked standing because their votes against the Line Item Veto Act had not been so nullified. Rather, the plaintiffs simply were outvoted when the Line Item Veto Act was enacted. Furthermore, the Act itself allowed Congress to exempt future laws from its coverage. Therefore, these plaintiffs’ right to vote to do exactly that meant their constitutional authority had not been nullified.

This part of Raines is no bar to the plaintiffs’ standing in the emoluments lawsuit. As mentioned above, there is no method or vote available for Congress to consent to the President’s acceptance of emoluments before the fact unless the President discloses to Congress the emoluments he would like to receive, and seeks that permission from Congress beforehand.

There is dicta (meaning part of the case not binding on future courts) in Raines, however, that is also relevant to the emoluments lawsuit. The Justices placed “some importance” on the fact that neither House of Congress by majority vote authorized the lawsuit. That was understandable because the Court was not persuaded that the Line Item Veto Act caused any harm to individual legislators; instead, the Court viewed any harm from the Act as merely an “abstract dilution of institutional legislative power.”  And significantly, the Court in Raines noted that both Houses opposed the suit—a fact that is not true in the context of the emoluments suit.  Moreover, in a subsequent case where the Court discussed legislator standing involving a state legislature, the Court observed that the plaintiff’s suit had been officially authorized by their legislature, but did not hold that such authorization was constitutionally necessary.

The court in the emoluments case should not require that the entire Congress authorize this lawsuit for the plaintiffs to have standing. No precedent requires that result and such a holding would be inconsistent with Coleman. More importantly, as a matter of policy, such a requirement would be a mistake because the injury alleged in this case is to the individual legislators, not the institution.

There are only a few provisions like the Foreign Emoluments Clause in the Constitution, requiring congressional permission before the President may take an action. One of them is that the President may not appoint judges or executive officers without the advice and consent of the Senate. Imagine that in 2009 President Obama, when he had a Democratic majority in the Senate, was fed up with the GOP filibustering his nominees (the filibuster was still in effect for all presidential appointments back then) and decided to simply appoint a Secretary of State or Defense. That unilateral action would have violated the Constitution as well as the right of members of the Senate to give their consent before such an office is filled. The only remedy for the members whose right to consent had been violated would be a lawsuit. In other words, they would have been completely denied the very vote which the Constitution entitles them. Notice that the right being denied in such a case is not a successful rejection of the President’s nominee, but instead simply the right to vote on that nominee. The deprivation of that right to vote is not only personal but an important aspect of the Framer’s desire for checks and balances.

The same is true for the plaintiffs in the emoluments lawsuit. They have a constitutionally protected right to vote on the President receiving emoluments; the President is depriving them of that right; and they have no other remedy, legal or political.

As an important policy matter, granting standing to the legislators in the emoluments lawsuit would not open the floodgates and allow members of Congress to sue the President every time they disagree with his actions. The Emoluments Clause specifically requires congressional consent before the President derives foreign income from his businesses. The claim that such consent is necessary because the text requires it is different than a generalized claim that the President is acting illegally by failing to properly implement a congressional law or even that the law he is executing is itself unconstitutional (the case in Raines). In both of those cases, Congress could hold votes to cure the alleged illegality. That remedy is simply not possible in the emoluments lawsuit.

The members of Congress who have sued the President for illegally receiving emoluments have been personally injured because their constitutionally granted right to vote on such emoluments has been “completely nullified." In other words, each member has a constitutional right but, without being granted standing by the court, would have no remedy. Therefore, these plaintiffs should be allowed to sue the President in order to enforce the checks and balances so important to our constitutional system.

1 comment:

Joe said...

The plaintiffs in this case meet this standard because there is no way for members of Congress to vote on the President’s receipt of emoluments without him disclosing those he would like to accept and asking for the required constitutional permission.

Congress can vote to give him blanket authorization or at least authorization that covers what is involved in other lawsuits and what Trump's lawyers argue is not covered by the clause. The domestic emoluments barrier does not allow waiver though. Congress can also vote to require disclosure alone.

And, a claim can be made that "Congress" has to assert the power, not some minority of members. The litigants here can try to have Congress pass legislation on the question though might fail. They can also have Congress as a body pass a resolution stating its concern that their power is being invaded here. If Trump continues in the face of such resolutions, demand for disclosure etc., Congress has power to subpoena, investigation and ultimately impeachment.

There is a constitutional requirement involved here that is being interfered with so the lawsuit on this specific type of claim can be defended on that ground. But, I'm not sure how that is different from individual litigants that failed to get traction on the war power claim. Raines was wary about even Coleman and there it seems a majority of the state senate (reference to 20 plus one additional one) sue or at least one half that was blocked by the veto. But, Congress overall can do various things here. The litigants are as much hindered by the Republican Congress as Trump.

The complaint has a lot of interesting and fairly convincing arguments as to the meaning of the clause. But, this standing point, at least as a matter of precedent, seems weak. See also, e.g., the duty to obtain a declaration of war from Congress & former attempts for individual members to litigate being rejected in the lower courts.