With Donald Trump positioned to profit immeasurably from the presidency, the American people are getting a lesson in advanced constitutional law, learning about a clause of the Constitution that many lawyers have never even heard of: the Emoluments Clause.
While the Emoluments Clause has never ranked on a top-ten list of well-known constitutional provisions, its obscurity shouldn't cast doubt on its importance. Indeed, its inclusion in our nation's Charter was one of the many ways in which the Framers sought to prevent the corruption and self-dealing that they viewed as among the greatest threats to the future of the new Republic.
But even as we are now recognizing the importance of the Clause, some have suggested that there's nothing that can be done, short of impeachment, to hold Trump accountable if he violates this provision of the Constitution. Those who are counting out the courts, however, are counting too fast.
The Constitution twice makes explicit what should be common-sense: the President should be working for the American people, not himself, and thus should not be able to profit from the office. Article I, Section 9 of the Constitution provides that "no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." Article II, Section 1 of the Constitution is specific to the President, providing that he "shall, at stated Times, receive for his Services, a compensation . . . and he shall not receive within that Period any other Emolument from the United States, or any of them." In other words, the Constitution prohibits the President from receiving any "emolument"--any compensation, gift, or other form of profit or gain--other than his salary, be it from foreign governments, the United States, or state governments and their instrumentalities.
These provisions reflect the Framers' fundamental belief that the Constitution needed to include anti-corruption measures if the new nation were to survive. Indeed, it was precisely because the Framers feared the dangers that corruption might pose--not only then, but also in the future--that they included these proscriptions in the nation's enduring charter. As Alexander Hamilton explained, "[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption." George Mason put it this way at the Constitutional Convention, "if we do not provide against corruption, our government will soon be at an end."
To prevent that from happening, the Framers included in the Constitution measures--like the provisions quoted above--to ensure that "corruption was more effectually guarded against, in the manner this government was constituted, than in any other that had ever been formed." Thus, while those provisions might seem obscure now, they weren't at the Framing. Indeed, they have become obscure only because most Presidents have assiduously taken steps to ensure that they were not in violation of these clauses' proscriptions.
Donald Trump now appears poised to depart from the precedent set by other Presidents of both parties because, in his view, "the president can't have a conflict of interest." Unfortunately for Trump (but fortunately for the country), that's not what the Constitution says, which is why countless stories have already been written about the various ways in which Trump, upon taking office, may violate the Emoluments Clause.
Yet even as a consensus seems to be emerging that Trump will be in violation of the Constitution the very first day he takes the oath to uphold it, there also seems to be agreement in some quarters that not much can be done about it. Vox writes that "[i]t's not clear who would have standing to sue." Lyle Denniston writes that "so far as the Constitution is concerned, the American people must rely upon Congress - no matter which party controls the House and Senate - to monitor the relationship between a president and a family business." Paul Krugman put it more colorfully, "But who's going to enforce the Constitution? Republicans in Congress? Don't be silly."
Why so much pessimism about the prospects of courts entertaining Emoluments Clause lawsuits? To be sure, there may not be examples of such lawsuits in the case books, but that's because we're in such unchartered territory. In fact, it's not difficult to imagine lawsuits that might satisfy the Constitution's requirements for standing to sue--in particular, its requirement that a plaintiff have suffered an injury-in-fact.
Consider just a few possibilities. Perhaps a competitor of a Trump business can sue on the ground that it is being directly injured by a foreign entity's efforts to curry favor with the new President. Perhaps a state can sue on the ground that it is injured by another state's efforts to do the same. The Supreme Court has said that courts can hear "complaint[s] that certain specific government action will cause that person private competitive injury." In the same vein, perhaps a competitor of Trump Tower can argue that it is being injured by the Secret Service paying to rent a floor of the building. Or perhaps if Trump has an interest in a company that threatens the environment (at one time, for example, he had a stake in the Dakota pipeline), individuals who seek to use those natural resources could sue. The Supreme Court has said that courts can hear "complaint[s] that individual enjoyment of certain natural resources has been impaired" by specific government actions. Or perhaps a court might even conclude that the Emoluments Clause imposes a structural limitation on who can serve as President, thus making Trump ineligible to serve as President and giving a citizen or state the grounds to sue for an injury they suffer as a result of action he takes as president.
It's far too early to know whether any of these theories would be successful in court, but that's exactly the point--it's far too early to say that they would not be successful, either. After all, it appears that there may be no shortage of different potential Emoluments Clause violations, and that's without even knowing the full extent of Trump's financial holdings.
At the end of the day, whether a lawsuit will be successful will depend on the exact allegations of the claim and the injury alleged by the plaintiff. Consider, for example, the case of the Line Item Veto Act. In 1997, the Supreme Court held that members of Congress who sued to challenge the law did not have standing to sue. The very next year, the Supreme Court held that the City of New York and certain health care providers did have standing to sue to challenge the same Act because those parties, unlike the members of Congress who had previously sued, had alleged "a 'personal stake' in having an actual injury redressed.'" In other words, the details matter. The fact that not everyone may be able to sue does not mean that no one can.
Finally, it's worth remembering that an important reason why our Framers created our federal courts was to serve as a check on illegal action by the other branches. The Framers understood that constitutional "[l]imitations . . . can be preserved in practice no other way than through the medium of courts of justice." In the Virginia ratifying convention, John Marshall argued, "[t]o what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection." To be sure, the Supreme Court has observed that the fact that no one would have standing to sue is not a reason to find standing, but it does mean we should think twice before concluding that the courts have no role to play in policing the President's compliance with the Constitution.
The Emoluments Clause is a critical part of our enduring national charter, designed to guard against the corruption that the Framers feared could destroy the country should it arise then or in the future. Given the numerous conflicts of interest posed by a Trump presidency, it's good that so many people are talking about this important part of the Constitution. But it's not good that so many are so quickly assuming that the courts have no role to play in that conversation. At the end of the day, the courts may be the only check on unconstitutional executive action that we have.