Here’s a brief Federal Reserve annotation on 2 things that struck me on a quick read of the government’s motion to flame inwards CREW v. Trump, filed today. The outset is well-nigh Mississippi v. Johnson, which the authorities cites every bit limiting the ability of courts to grant injunctions against the President. The 2nd is well-nigh the government’s to a greater extent than full general claim that the entirely proper relief for an emoluments violation is political rather than judicial.
The “Johnson” inwards Mississippi v. Johnson was, of course, President Andrew Johnson, too the adapt sought to tell him too other officers of the executive branch from enforcing 2 substitution statutes enacted yesteryear the Reconstruction Congress. One of the curiosities of the case, of course, was that Johnson had no wish to enforce those Acts, which had entirely function law over his vetoes. The adapt was actually aimed at U.S. Army officers too so exercising potency inwards the South. Still, President Johnson was a named political party inwards the case, too the Supreme Court refused to number the injunction. (A pedantic point: the illustration was decided inwards 1867, non inwards 1866 every bit the government’s brief indicates. But this is a mutual error, arising from the fact that the illustration written report begins amongst the words “December Term, 1866.” The mistaken inference that the illustration was decided inwards 1866, rather than several months later, reflects zilch worse than a failure to read the facts of the illustration too a express familiarity amongst the history of Reconstruction.)
The authorities directly cites the illustration every bit standing for the proffer that the courts take away hold “no jurisdiction of a nib to tell the President inwards the surgical operation of his official duties.” Now, every bit a declaration of law, that quoted linguistic communication is overbroad, every bit Mississippi v. Johnson itself acknowledged. But that’s non what’s most remarkable well-nigh the government’s role of the case. What’s striking is that the CREW adapt isn’t seeking “to tell the President inwards the surgical operation of his official duties” inwards the outset place. It’s seeking an injunction requiring the President to divest himself of belongings that he personally owns. Neither President Trump’s ownership of those properties nor his divestment from them would travel an deed taken inwards the surgical operation of the President’s official duties. Sure, his constitutional obligation to divest arises from his condition every bit President: the Emoluments Clause applies to him because he is a authorities official. But the adapt isn’t bespeak for an injunction forbidding him to execute a law (as inwards Mississippi v. Johnson) or compelling him to exercise so. It’s bespeak for an injunction to brand him to sell off to a greater extent than or less hotels too restaurants. It’s true, of course, that Trump is beingness sued “in his official capacity,” every bit the caption of the illustration indicates. But a adapt against an official inwards his official capacity is non ever the same thing every bit a adapt seeking to tell that official inwards the surgical operation of his official duties, every bit that category is used inwards Mississippi v. Johnson. The CREW illustration is the sometime but non the latter, too the government’s brief completely elides the distinction. (And, it occurs to me, the government’s brief on this dot also has the termination of analogizing President Trump to President Johnson, which maybe is non what the White House most wants at this moment. But I digress.)
The 2nd thing that struck me on a quick read of the government’s motion was the declaration that the entirely remedies for Emoluments Clause violations are political rather than judicial. That is, the authorities contends that relief must come upwards from the electorate, which tin retaliate against the President for his misbehavior, or, to a greater extent than realistically, from Congress. As an initial matter, it’s non crazy to shout out upwards that this is the variety of constitutional dominion that should travel policed yesteryear Congress rather than yesteryear the courts. The dominion stated inwards the Foreign Emoluments Clause specifically makes Congress the approximate of the permissibility of an officer’s accepting an emolument: it provides that no officeholder shall convey an emolument from a unusual authorities unless Congress consents. So if the Constitution directs that Congress should sit down inwards judgment on such matters, i powerfulness shout out upwards that the work is i for Congress to variety out.
The problem amongst this logic, though, is that it gives officers receiving emoluments an incentive for noncompliance. The argue why goes to the burden of inertia inwards the legislative process. The Emoluments Clause says that the officeholder may non convey an emolument without congressional consent. On the measure (and I shout out upwards correct) reading, that agency that Congress must affirmatively grip to permit the emolument yesteryear voting to grant the permission. The burden of legislative inertia thence weighs against whatever item officer’s beingness able to convey whatever item emolument: entirely if Congress gets off its keister too grants permission volition the emolument travel permissible. But if an officeholder knows that the entirely redress against him for violating the Clause must come upwards from Congress, too so he or she also knows that he or she tin flip the burden of inertia merely yesteryear keeping the emolument rather than bespeak for permission first. If in that location volition travel no enforcement except from Congress, the burden of inertia favors the officeholder who doesn’t seek permission, too if Congress doesn’t bestir itself to deed the officeholder volition halt upwards keeping the emolument. It’d travel strange for the dominion to incentivize the governed parties this way.
The work is peculiarly acuate when the official inwards query is the President, who has powerful tools for preventing Congress from acting, including non exactly his condition every bit leader of a political political party (not foreseen yesteryear the drafters of the Emoluments Clause) but also the veto ability (completely known to them). Consider: If a President behaves properly too asks Congress “May I proceed this emolument?”, he must overcome the burden of legislative inertia. But if the President exactly keeps the emolument, Congress to enforce the Clause must non entirely overcome interia too vote to exercise something yesteryear a bicameral bulk but powerfulness fifty-fifty take away hold to exercise so yesteryear veto-proof supermajority. After all, whatever vote Congress would convey yesteryear way of trying to punish a President for an emoluments violation would presumably travel discipline to veto exactly similar whatever other congressional activity amongst forcefulness of law, too a President who wanted to proceed his emoluments could signal to Congress non to bother unless it had the votes to overcome a veto. So yesteryear thumbing his olfactory organ at the rule, the President would larn to alter the proportion of Members of each House of Congress that he’d demand on his side of the query from a bulk inwards each House of Congress to one-third addition i inwards exactly a unmarried House.
In low-cal of this laid upwards of problems, deeming Congress the entirely enforcer of the Clause seems considerably to a greater extent than problematic. And the natural solution is to permit courts enforce the Clause—as they exercise amongst most other constitutional rules, after all.
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