Category: Money in Politics

The Right to Withhold Consent: Legislator Standing and the Emoluments Clause

When CREW launched its emoluments lawsuit back in January, I—among others—wondered whether the plaintiffs’ standing theory would hold up in court.  At the time, I floated a different approach: “Why not add a Member of Congress as a plaintiff for a backup standing theory?  (i.e., ‘I have a right to vote on consent?’)”  Five months later, almost 200 Members of Congress have filed a lawsuit demanding precisely that.

While nonprofits, hoteliers and restaurant groups, and State Attorneys Generals have already brought claims, the congressional plaintiffs bring three new vital elements to the mix: a specific right provided in the text of the clause, a claim that aligns with the purposes of the clause, and an administrable and ministerial judicial remedy.

The Foreign Emoluments Clause prohibits the President, “without the consent of the Congress,” from “accept[ing] any present [or] emolument . . . of any kind whatever, from any king, prince, or foreign state.”  The purpose of the clause is to prevent foreign influence and corruption of our government, and the clause fulfills this purpose by subjecting any benefits flowing from foreign states to U.S. officials to a process of explicit congressional approval.  By preventing any emoluments from being received unless and until consent is provided, the clause provides a default protection against foreign influence absent positive approval by Congress.

The unique positive nature of the textual requirement establishes an individual right in Members of Congress to provide or withhold consent.  And, by requiring congressional approval before emoluments are formally received by the executive, the Constitution sets out specific structural constraints to ensure accountability and transparency.  Just as the Constitution’s “advice and consent” provisions play a critical structural role in the separation of powers, the Foreign Emoluments Clause protects public interests and individual liberties by mandating certain procedural checks and balances.

The positive nature of the structural consent requirement also demonstrates why the clause does not present a “political question.”  As Joshua Matz has ably pointed out, the argument that Congress may take action if it so desires—and therefore no judicial remedy is permitted or required—would “rewrite and invert” the clear textual command of the clause.  The clause’s default setting in the absence of congressional action is to prohibit the acceptance of emoluments, not permit them.  Congressional inaction creates an absolute constitutional bar.

The congressional lawsuit also reflects a close fidelity to constitutional principles when one considers the implied cause of action, the relevant zone of interest, the potential remedies available, and the separation-of-powers questions raised by judicial intervention.  However much hoteliers may be harmed by (and have standing due to) unlawful competition, no one has argued that the clause was included in the Constitution because the Founders were worried that the President of the United States might undercut the wine sales and conference bookings of his fellow citizens.  As such, one might argue (as the DOJ has) that an implied cause of action should not arise in such circumstances.  Nor might federal courts feel particularly comfortable as a remedial matter ordering the President to rearrange his financial affairs in a particular manner or making delicate substantive judgment calls about which emoluments pose a threat of corrupting foreign influence.

Yet, the Founders did create a mandatory mechanism to protect the public at large from these threats, and the remedy is to protect the procedural right of legislators to grant or withhold consent. Thus, as far as remedies are concerned, the courts need only define “emoluments” and prohibit the president from receiving them absent congressional approval.  A benefit meeting the definition could be held in trust until an affirmative vote of Congress allows the President to “accept” it.  Thus, the injunctive relief would be strictly ministerial and administrative, with sensitive political judgments reserved for the legislature.  Such an approach would vindicate the rights granted to Congress, adhere to the structural balance struck by the clause, and protect the purposes for which the clause was adopted while ensuring that the judiciary did not intrude upon the proper executive or legislative domains in the process.

The Foreign Emoluments Clause fulfills critical public purposes through a mandatory process designed to ensure transparency and accountability through structural constitutional requirements.  These checks and balances create a default prohibition on the receipt of foreign emoluments in the absence of congressional consent.  Individual Members of Congress possess a constitutional right to provide—or withhold—that consent, and if the Constitution’s default prohibition is being violated in the interim, those Members should be able to seek a judicial remedy.  The lawsuit filed today would provide just that.

President Trump: Now What?



“Draining the Swamp”





Hard Facts and Hard Realities


The Whitelash



Next Steps






“How American Politics Went Insane”

Jonathan Rauch for The Atlantic.  A great piece on why we need to stop vilifying the parties and candidates and actually take a hard look at the incentives that motivate their behavior.  The political incentives you build into the system shape the results you get out of the system.



I don’t agree with all of the diagnoses (or prescriptions) in this article, but it’s a helpful reminder on the law of unintended consequences (and a warning for reformers to act with care).  You can’t simply prohibit the darker angels of human nature; you have to design a system that encourages our best instincts and channels our worst instincts so that both are made to be productive and advance the common good.  This instrumentalist approach was central to the design of the Constitution:



James Madison, Federalist No. 51.


“Inside the Conservative Push for States to Amend the Constitution”

Michael Wines for the NYT.

Personally, I’m not opposed to a general convention for constitutional amendments.  The focus of the article is on the substance of which amendments might come up and whether the convention would be a “run-away” convention that would threaten the Constitution itself.  Perhaps the more interesting question, however, is who ends up attending?

As for the balanced budget amendment itself, I’m not a fan.  Not because of the substance of the amendment, but because it strikes me as somewhat outside the wheelhouse of the Constitution.  The Constitution should generally focus on big-picture rights, principles, and procedures for governing, with the governing itself occurring within that framework.  (Think, 18th Amendment (prohibition) and 21st Amendment (repealing prohibition) – was that really a proper subject for a Constitution?)  A balanced budget requirement seems to straddle the line between a statutory and constitutional issue.

A better vehicle might be a “precept.”  More on this later.