December 22, 2017

"Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition."

"The prohibitions contained in these Clauses arose from the Framers' concern with protecting the new government from corruption and undue influence. Indeed, at the time of the Founding, the new republic was conscious of the European custom of bestowing gifts and money on foreign officials.... The Framers were not only concerned with foreign corruption, but they were also wary of undue influence from within.... [T]here can be no doubt that the intended purpose of the Foreign Emoluments Clause was to prevent official corruption and foreign influence, while the Domestic Emoluments Clause was meant to ensure presidential independence. Therefore, the Hospitality Plaintiffs' theory that the Clauses protect them from increased competition in the market for government business must be rejected, especially when (1) the Clauses offer no protection from increased competition in the market for non-government business and (2) with Congressional consent, the Constitution allows federal officials to accept foreign gifts and emoluments, regardless of its effect on competition.... There is simply no basis to conclude that the Hospitality Plaintiffs' alleged competitive injury falls within the zone of interests that the Emoluments Clauses sought to protect."

Wrote the federal district judge George Daniels (PDF), dismissing the lawsuit against President Trump. I haven't written much about this case, having said what I had to say when I first read about it, just before it was filed, last January:
Quite apart from the substantive merits of the claim, it's hard to see how there are plaintiffs with standing to sue. How does the money paid in rent and hotel bills to the Trump organization cause concrete and particularized injury to anyone? You could say we are all injured by the possibility that commercial activities could influence the President's decisions, but that's the sort of generalized grievance that isn't enough.

But the filing of the lawsuit brings attention to the legal argument, which bolsters the political argument that the risk of influence is bad and should be eliminated. And in the end, almost certainly, the matter will be resolved in the political sphere and not the courts.

34 comments:

james james said...

Those who had hopes for the Emoluments Clauses may now need Emollient Creams.

- james james

EDH said...

"Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition."

james james said...
Those who had hopes for the Emoluments Clauses may now need Emollient Creams.

"It must have been the botanical extracts."

Ann Althouse said...

LOL. You guys are great. Thanks.

Ken B said...

Seth Barret Tilman had a good set of articles on the clause. It does not he concludes apply to presidents. His argument seems very strong to me. On the Volokh Conspiracy site.

Ann Althouse said...

@Ken B

That's the substantive merits of the case. I have blogged about that.

But standing is a threshold issue and it shouldn't resolve the substantive merits.

Ann Althouse said...

To resolve the case on the standing ground is to send people back into the political sphere to hammer out their grievances. I think that was the right answer here.

Chuck said...

Another great law post by Althouse. I agree with you, Professor.

But this was just a "standing" case. Not reaching any merits on the "clauses."*

What if Congress had sued the President? What if some other plaintiff with standing had sued? Aren't there some substantive issues for Trump to be concerned about?

*It was interesting to me that the court pluralized "Emoluments Clauses." I suppose the technically, there are more than one clause, if you include the stuff about titles of nobility, etc.

Bay Area Guy said...

Once again, the "Get Trump" Legal team missed it by .....that much.

cubanbob said...

The idea of the plaintiffs was to help insure that only life long career politicians can become president.

Bruce Hayden said...

“To resolve the case on the standing ground is to send people back into the political sphere to hammer out their grievances. I think that was the right answer here.”

Of course, the problem here is that the Republicans now controlled Congress, as well as the Presidency, so nothing political was going to be done. Which left the Judiciary....

“What if Congress had sued the President? What if some other plaintiff with standing had sued? Aren't there some substantive issues for Trump to be concerned about?”

My understanding, from reading the opinion, is that Congress has the power to allow or disallow foreign or domestic emoluments, and that the Courts shouldn’t intervene until they had spoken. There are occasions when the courts have allowed Congress to sue the Executive (such as when Obama was spending money on Obamacare that they had not appropriated), but I think that it has to be all of Congress, or at least one House therein, and not individual Senators or Representatives. Which means passing something in Congress, which the Republicans were able to do with Obama, but the Democrats are unlikely to be able to do with Trump.

Michael K said...

The insane left loses again.

What will happen when people start to realize that the tax cut will actually benefit the middle class ?

The Democrats seem to have put their entire inheritance on red or double zero.

Bruce Hayden said...

“But this was just a "standing" case. Not reaching any merits on the "clauses."*”

Which would mean that any analysis of the merits is probably technically dicta.

Part I loved about standing was where the advocacy group claimed harm based on the expenditure of resources to litigate this issue. Court essentially told them that, no, they couldn’t bootstrap federal standing that way, because if they could, then their methodology would swallow the federal standing doctrine, through such manufactured harm.

Mike Sylwester said...

cubanbob at 9:24 AM
The idea of the plaintiffs was to help insure that only life long career politicians can become president.

Well put.

The only allowable business earnings would be writing political memoirs, giving political speeches and managing pay-to-play foundations.

Bruce Hayden said...

“What will happen when people start to realize that the tax cut will actually benefit the middle class ?”

You might enjoy this from Stephen Green:
https://static.pjmedia.com/user-content/1/files/2017/12/CUT-988x1024.jpg

Which reinforces what Dana Loesch said:
“"They cannot lie to the American people when the American people see they are keeping more of their money," she said.

Loesch added that, under U.S. Treasury policy, tax rates are legal minimums.

She said objecting Democrats and media personalities can send as large a check as they want to the Internal Revenue Service.

"They are free to pay more," she said.”

Chuck said...

What will happen when people start to realize that the tax cut will actually benefit the middle class ?


What will happen in 2018, when Republicans propose entitlement reforms and federal budgeting provisions that effectively cut Medicaid, Medicare and Social Security? It will be a colossal promise-break for Trump. It will appear to many as though Congress first cut taxes and then balanced the budget on the backs of the poor and the elderly.

I'm actually one of those Republicans who believe in entitlement reform. I'm a Paul Ryan fan.

But I will bet that in early 2018, the problems with the 2017 tax bill will outweigh any individual positives.

Rusty said...

"What will happen in 2018, when Republicans propose entitlement reforms and federal budgeting provisions that effectively cut Medicaid, Medicare and Social Security? It will be a colossal promise-break for Trump. It will appear to many as though Congress first cut taxes and then balanced the budget on the backs of the poor and the elderly."

Boo!
Here is what will happen. The republican part of congress will push for new participants to actually invest part of their contribution(read tax) in the private sector. None of those currently on or eligible for SS or med. will be effected. Eventually the repub. idea is to have every individual responsible for the larger portion of their own retirement med.care money.
Failing that.
just give everyone their money back.

Mike Sylwester said...

Chuck at 9:57 AM
What will happen in 2018, when Republicans propose entitlement reforms and federal budgeting provisions that effectively cut Medicaid, Medicare and Social Security? It will be a colossal promise-break for Trump. .... I'm actually one of those Republicans who believe in entitlement reform. I'm a Paul Ryan fan.

I agree with you about all that.

However, Trump won the Republican primary elections by promising the impossible. The Republican electorate spoke.

It's a political consequence of the White working class shifting from the Democratic Party to the Republican Party.

Bruce Hayden said...

One answer is that they concentrate on Medicaid. Just reform it and treat its expansion as part of Obamacare repeal. The beneficiaries of Medicaid tend to vote Democrat anyway.

Jersey Fled said...

Let's see. How many times has the Looney Left (but I repeat myself) swung and missed so far?

1. Recounts in Wisconsin, Michigan and Pennsylvania (Trump picked up votes)

2. Various electoral college gambits including Faithless Electors

3. Pussy hat parades, Anti-Fa et al (i.e. "take it to the streets")

4. Illegal unmasking to facilitate leaking by Obama loyalists

5. Phoney Russia probe "insurance policy"

6. Emoluments Clause nonsense.

I'm sure I missed a few. Feel free to add.

And stragely, Trump is somehow still president.

FullMoon said...

But I will bet that in early 2018, the problems with the 2017 tax bill will outweigh any individual positives.

Perceived problems, or legitimate problems? Media will highlight and spin as much as possible to blame tax cuts for everything.
If there is an actual cut in current Social Security checks or Medicare payments, it will be a real problem. More likely is claims that were it not for tax cuts, we could have given you a raise, or done other good deeds.

FullMoon said...

But I will bet that in early 2018, the problems with the 2017 tax bill will outweigh any individual positives.
............................................

It is individuals who vote.

Jersey Fled said...

Darn. I forgot:

7. Impeachment.

Mattman26 said...

The judge is a Clinton appointee; he's black; he was originally appointed to the NY state bench by Mayor Koch, and later became counsel to Mayor Dinkins.

He must not have gotten the memo.

Bay Area Guy said...

I'd like to see the Plaintiffs retain the services of esteemed Professor Lawrence Lessig to take this baby all the way to the Supreme Court, invariably lose, and then have Ruth Bader Ginsburg read her scathing dissent from the bench, wearing a tasteful pussy-hat.

At that point, we will know that the Left has gone full retard.

Chuck said...

Bruce Hayden said...
One answer is that they concentrate on Medicaid. Just reform it and treat its expansion as part of Obamacare repeal. The beneficiaries of Medicaid tend to vote Democrat anyway.

I think that's sound political thinking.

Only problem with that is that Trump promised not to cut Medicaid. (Along with no cuts to Social Security or Medicare.)

The other problem is all of Trump's amazing, reckless promises on health care. He was going to "cover everybody." He said the "government would pay" for anybody without coverage.

I knew it was a lie at the time. A colossal, anti-Republican lie. It pissed me off, that Trump was winning our primaries, getting away with such lies.

Chuck said...

Rusty said...
...
...Here is what will happen. The republican part of congress will push for new participants to actually invest part of their contribution(read tax) in the private sector. None of those currently on or eligible for SS or med. will be effected. Eventually the repub. idea is to have every individual responsible for the larger portion of their own retirement med.care money.

These are all sound notions. And as a Republican, I agree with them. But Trump is deservedly going to catch hell for anything that looks or sounds anything like a cut. Because of the way he campaigned.

Mike said...

Whiny Resistors Hardest Hit!

Mike said...

Only took four tries to get through Bloggers buggy system! Must be Resistance warriors doing their coding.

Yancey Ward said...

"What if Congress had sued the President?"

Congress suing is irrelevant, too. Congress can already deal with it without suing.

Gahrie said...

It pissed me off, that Trump was winning our primaries, getting away with such lies.

Well to be fair, Jeb started it when he claimed to be conservative........

Michael K said...

" It pissed me off, that Trump was winning our primaries, getting away with such lies."

If only Hillary had gone to Wisconsin and Michigan you would be ecstatic to be back in the minority with the old excuse.

n.n said...

Wow, not even voices from the twilight fringe. Positive progress.

jr565 said...

Everyone knew that this was never a serious thing. They scoured history and law to find SOMETHING no matter how novel or obscure to get Trump on. It’s just a shame that people like Lawrence Tribe who claim to be knowledgeable of the law thought he could get away with it and attacked his name to such a frivolous claim.

SDN said...

Ann, this ruling from "a Clinton-appointed judge" was inevitable. Bill and Hillary Clinton committed far more egregious violations of the Emoluments Clause than all other Presidents combined. By issuing this ruling, the judge made sure no one but their Deep State allies in DOJ would be able to call them to account.