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Maybe there are Americans somewhere who did not know Donald J. Trump was in the hotel business, who actually thought his name would come off the buildings if he was elected, or, finally, who do not yet have enough information to judge his conduct of the presidency.
For those who occupy one of these categories, the President’s critics have manufactured a controversy over the foreign and domestic emoluments clauses of the Constitution. More troublingly, they have done so in the branch of government where such manufacturing these days occurs and which is least capable of the prudential judgment such questions require: the courts. Thus the attorneys general of Maryland and the District of Columbia sued the president, and late last month, U.S. District Judge Peter J. Messitte allowed the case to proceed.
This practice of attorneys general leading challenges to presidential behavior—a trail that, in fairness, Republicans blazed under President Obama—is especially pernicious because it resolves every constitutional question into a federalism, and thus a judicial, question.
Of course, federalism disputes do not have to be judicial—Federalist 46’s reference to these controversies being resolved by the “common constituents” of the state and national governments shows that much—but James Madison more or less believed they were, and long practice has sustained him. Madison wrote in Federalist 39 that judicial resolution of state-national disputes was the only alternative to force. His settled understanding was that, as he later explained, “the Judicial Authority of the U. S. [was] the constitutional resort for determining the line between the federal & State jurisdictions.”
It takes little reflection to see that the emoluments clauses are not federalism issues. They were intended as impediments to presidential corruption. Congress can activate them by legislating and enforce them by investigating, impeaching or employing any of the other ample punitive tools at its disposal. More important, voters who find a president corrupt can vote him out or—since it was clearly predictable that Trump would retain his global business interests—decline his election in the first place.
It seems unlikely at best that a president with such global interests as Trump actually violates the letter or spirit of the emoluments clauses when a foreign government or state does business with his hotels. These kinds of dealings may be unseemly. They may be morally corrupt. The tendency to turn either scenario into an accusation of law-breaking is one of the least agreeable features of contemporary politics. The benefit the president personally obtains from foreign governments or states doing business with his properties is diffuse at best.
But even if the president had violated the emoluments clauses as written, such questions are not judicially cognizable because it is nearly impossible to see how anyone would have standing to take the matter to court. Maryland’s comically Calhounian claim that it could police the president’s behavior because an emoluments clause was important to the state’s ratification illustrates the lengths to which parties must go to show standing.
Judge Messitte rejected that particular claim, but he recognized standing on other grounds that are nearly as tenuous. Maryland and D.C. asserted that they and their citizens who operate non-Trump hotels were disadvantaged by favoritism that would be shown to those who do business with Trump properties.
This is a thin assertion of harm, and it bears little relation to the plainly partisan purpose of the suit. More important, the claim of standing bears little relation to the purpose of the constitutional clause at issue, which was to inhibit corruption. Perhaps the domestic emoluments clause can be shown to give states standing by asserting its purpose is to prevent disparate presidential treatment of them. But Maryland has shown no actual discrimination against it for not doing business at Trump properties, nor is it likely it can show its non-Trump properties are materially suffering because Trump ones are thriving on government business.
And supposing, further, that Maryland had made these showings? That does not mean the issue is one for judges to resolve. Many constitutional clauses require accompanying legislation. They are not automatically judicial, and still less federalism, questions.
Messitte’s most pernicious finding, then, was not that Maryland and D.C. had standing. It was that in the absence of Congressional action on the emoluments issue, his court nonetheless had the authority to “review the actions of the President to determine if they comply with the laws.”
Standing and judicial authority are, to be sure, inseparable. Without the standing claim, there would be no case; with it, a party asserting harm by an alleged constitutional violation seems to be entitled to its day in court. But the courts have traditionally required a concentrated and specific harm to establish standing, not one as diffuse as the two jurisdictions assert. This is why soldiers cannot sue to stop unconstitutional conflicts, for example, and why taxpayers cannot take claims of unconstitutional spending to court.
Equally important, as Messitte noted, even a claim of harm must be soluble by judicial action to warrant standing. How might the judiciary provide relief here? By requiring President Trump to divest from properties whose value, well before he ran for office, derived from his name? By barring foreign or state governments from doing business with them? These would be both blunt instruments and—given the ample evidence available to Congress and to voters to assess the issue—unnecessary ones.
Messitte’s claim of a blanket judicial authority to review presidential conduct so long as someone claims it is illegal is breathtaking. It is not, in fairness, unprecedented. It does not have to be in order to be arrogant.
The domestic emoluments clause might reasonably be considered a federalism issue if, again, it could be shown that the chief magistrate was receiving such concentrated profits from state business that he treated states disparately. The foreign emoluments clause is not a federalism issue in the vaguest sense. It prohibits the president from receiving emoluments Congress has not approved. The plain inference is not that judges are authorized to declare, “If you don’t enforce it, we will.” It is that Congress is responsible for policing the issue.
It is true, of course, that Congress has no appetite for doing so. It does not follow from this that the courts should step in. If anything, it counsels the opposite. What is needed is to break the political neurosis of codependence between the branches: Congress wants the courts to do its work, and the courts are hooked on obliging. Congress may reasonably conclude there is no violation of the emoluments clauses. But even were there a problem, it is equally reasonable to suppose Congress would toss the political hot potato to willing judges, triggering the cycle of irresponsibility once more.
State attorneys general who oppose the president are simply throwing constitutional claims at a judicial wall to see what sticks. But on Messitte’s reasoning, which combines a thin claim of standing with a broad claim of judicial authority, nothing would ever bounce off. Any constitutional dispute would be reducible to federalism and thus become a judicial question.
Far better for voters and Congress to get back in the habit of considering constitutional questions themselves instead of leaving that to the courts. Electoral processes supply sufficient and superior means for resolving these obviously political claims. That might mean the popularly elected Congress asserting itself through legislation, and it might mean the voters tossing the president.
That said, if the president’s behavior is impeachable, there are stronger and less minutely technical grounds than the emoluments clauses. If he is manipulating his office for venal ends, he is doing so transparently, and voters can respond as they wish. Lawsuits do not further illuminate the matter. Far from it. The motive for each of these solutions, should they be justified, is positively undermined by a manufactured judicial controversy that relieves Congress and the public alike of their duty of vigilance.