Saturday, February 8, 2020

D.C. Circuit Dispatches with Congressional Emoluments Suit

By Jonathan H. Adler - February 08, 2020 at 07:11PM

On Friday, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit ordered Blumenthal v. Trump dismissed for lack of Article III jurisdiction. In a brief, per curiam opinion, Judges Henderson, Tatel, and Griffith concluded that members of Congress lacked standing to sue President Trump over alleged violations of the Foreign Emoluments Clause. Individual members of Congress, they explained, lack standing to sue the President over alleged legal violations.

In Blumenthal, some 215 Members of Congress alleged that the President's alleged violations of the Emoluments Clause deprived them of the opportunity to vote on whether the receipt of such emoluments was permissible, as anticipated by the text of the clause. The D.C. district court bought this argument and, more surprisingly, refused to allow an interlocutory appeal, prompting a rebuke from the D.C. Circuit.

In Friday's decision, the D.C. Circuit panel explained that this suit was clearly barred by existing Supreme Court precedent, Raines v. Byrd in particular. In Raines, the Supreme Court concluded that individual members of Congress lacked standing to challenge the constitutionality of the Line-Item Veto Act. In Blumenthal, the D.C. Circuit recognized plaintiffs' efforts to argue around Raines were completely unavailing, particularly in light of subsequent decisions.

The Supreme Court's recent summary reading of Raines that "individual members" of the Congress "lack standing to assert the institutional interests of a legislature" in the same way "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole," Va.
House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953–54 (2019), puts paid to any doubt regarding the Members' lack of standing. Here, the (individual) Members concededly seek to do precisely what Bethune-Hill forbids. See Appellees' Br. at 12 (asserting Members' entitlement "to vote on whether to consent to an official's acceptance of a foreign emolument before he accepts it . . . is not a private right enjoyed in [his] personal capacity, but rather a prerogative of his office.").

The district court erred in holding that the Members suffered an injury based on "[t]he President . . . depriving [them] of the opportunity to give or withhold their consent [to foreign emoluments], thereby injuring them in their roles as members of Congress." Id. at 62 (quotation marks omitted). After Raines and Bethune-Hill, only an institution can assert an institutional injury provided the injury is not "wholly abstract and widely dispersed." Raines, 521 U.S. at 829. . . .

Our standing inquiry is "especially rigorous" in a case like this, where "reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." . . . Here, regardless of rigor, our conclusion is straightforward because the Members—29 Senators and 186 Members of the House of Representatives—do not constitute a majority of either body and are, therefore, powerless to approve or deny the President's acceptance of foreign emoluments. . . . For standing, the Members' inability to act determinatively is important, see Raines, 521 U.S. at 829, and, conversely, the size of their cohort is not—so long as it is too small to act. That is, we assess this complaint—filed by 215 Members—no differently from our assessment of a complaint filed by a single Member. . . .

The Members can, and likely will, continue to use their weighty voices to make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit. But we will not—indeed we cannot—participate in this debate. The Constitution permits the Judiciary to speak only in the context of an Article III case or controversy and this lawsuit presents neither.

Blumenthal was one of three Emoluments Clause cases filed against Trump. The other two, CREW v. Trump and D.C. v. Trump, are in the Second and Fourth Circuits, respectively. Standing has been an issue in all three cases (for some of the reasons I discussed in these posts), and has divided the various appeals panels.

Bluementhal always presented the weakest case for Article III standing of the three, and so this case is likely at an end, while the others proceed. The Second Circuit accepted the argument that competitors have standing to challenge Emoluments Clause violations, while the Fourth Circuit did not. The Fourth reheard the case en banc in December, and a petition for en banc rehearing is pending in the Second.

While Article III courts may not be able to hear suits alleging Emoulments Clause violations (at least in the absence of a statute creating a cause of action and providing a more concrete basis for standing), that does not mean there are not serious substantive concerns. In all three cases, the courts have focused primarily on jurisdictional questions, not on the underlying merits, so none of these decisions should be taken as exonerations of the President's conduct.

To this point, the Blumenthal opinion quotes from Justice Joseph Story's Commentaries on the Constitution of the United States:

[a] patriot will not be likely to be seduced from his duties to his country by the acceptance of any title, or present, from a foreign power. An intriguing, or corrupt agent, will not be restrained from guilty machinations in the service of a foreign state by such constitutional restrictions.


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