Emoluments: No Pause for the Clause

When last we visited the Emoluments Clause of the US Constitution, in our blog of August 4, 2018, it was in the context of a suit by the State of Maryland and the District of Columbia, seeking to prevent the current president from receiving, through his business activities, payments (‘emoluments’) from foreign governments without Congressional approval.  Last Friday, a second lawsuit brought under the Emoluments Clause—- but urging a different legal theory—- was granted permission to proceed. 


This second lawsuit, Blumenthal v Trump, was filed by approximately 200 Democratic members of Congress.  The crux of their complaint is that the president ‘has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments.’   The benefits that Trump receives from that business, they allege, constitute ‘emoluments’ and the Constitution requires him to obtain Congressional approval before accepting them. 


Lawyers from the US Department of Justice moved to dismiss the complaint on the grounds that the plaintiffs—the 200 or so people who filed the lawsuit—did not have ‘standing’ to sue.  To have ‘standing’ a plaintiff must allege that the activity complained of injures him in a personal and individual way.  The requirement of standing ensures that lawsuits can be brought only by parties directly harmed by a particular event or policy.   Federal courts are limited by the Constitution to adjudicating only ‘cases’ and ‘controversies’; they cannot give advisory opinions or adjudicate cases where someone merely objects to a policy that does not affect them. 


The plaintiffs in Blumenthal alleged that have suffered damage because they have not been given the chance to vote on whether the president should be allowed to accept what they claim are ‘emoluments.’  In a 58-page opinion released on Friday, September 28, Federal Judge Emmet J. Sullivan denied the government’s motion to dismiss the complaint.  He found that the plaintiffs do have standing to bring the lawsuit, for ‘Since the [Emoluments] Clause prohibits the President from accepting a prohibited foreign emolument unless Congress votes to consent, the Constitution gives each individual Member of Congress a right to vote before the President accepts.’  The infringement of this right, Judge Sullivan held, was an injury suffered by each of the plaintiffs and gave them standing to sue.


This decision means that the Blumenthal case will proceed in federal district court (that is, a trial court) in Washington, DC.  At the same time the Maryland case will also proceed on a different legal theory.  We will await developments. 

Mari Bush