INAL, but it seems to me that the whole basis of the Constitution is to establish the guarantees that the Federal government makes to the states, in return for their cooperation and unity. If the Federal government does not seem to be abiding by the Constitution (e.g., by not preventing Emoluments), that would be equivalent to a party in a contract not following the agreement.
If anyone has standing, I would expect it to be a state government.
When did DC form joinder with the United States? Important question if this argument is going to be held in a courtroom with a gold-fringed flag.
Ok. Could you say more? Surely the court will have to give some sort of specific definition to the term emoluments and/or some legal test for determining if something falls under that category, right? (Assuming that it rules on the substance of the suit, which I recognize it will probably try to avoid.) There’s nothing nearly as specific as the Miranda warning in the 5th Amendment or the Lemon test in the 1st, but when faced with a vague or unspecific constitutional clause, I thought it was standard practice for the SC to define it more specifically.
And what about the questions for which that situation was merely an example? Are there any disputed facts in this case? And even if not, what happens when there ARE disputed facts in a case and the SC has original jurisdiction?
Even if that were a sound legal argument (which I doubt), surely it would just as likely result in the state government in question suing Congress for failing to stop the President doing whatever bad thing he was doing. “The Federal government” isn’t a monolithic entity and the Constitution covers all three branches. Them are some muddy waters to swim in.
The OED defines an emolument as ‘profit or gain arising from office or employment’ and ‘benefit or comfort.’ Trump’s salary as President is an emolument. Your salary for your job is an emolument.
That’s not the way standing analysis is done.
It’s not enough to point generally at the federal government not following the Constitution. In order to have standing, a party must show particularized injury, not just a lack of fidelity to the Constitution.
A good way to learn about this is to read a pair of cases: Raines v. Byrd and Clinton v. City of New York.
In Raines, six members of Congress sued following the passage of the Line Item Veto Act, which allowed the President to veto portions of spending bills without having to scuttle the entire bill. The trial court agreed with them and struck the law down, but the Supreme Court found that individual congress members had no standing to sue merely because they believed a law was unconstitutional.
Clinton v. City of New York was a similar case, this time brought by the City of New York against the President, in which several plaintiffs pointed to specific programs that were cut from the budget by the President’s use of the line item veto. They, in other words, were able to specify a dollar figure, a specific harm, that they had suffered because of the President’s use of the line-item veto.
The Supreme Court agreed that they had standing, and on the merits struck down the line-item veto.
Excellent question.
The usual practice is for the Court to appoint a “Special Master,” who hears evidence and recommends the adoption of findings of fact to the Court.
Here’s an example of such a report, issued in the dispute between South Carolina and North Carolina over the Catawba River. The Supreme Court has original jurisdiction in suits between states.
As to your other questions, its true that the Court has carved out specific rules even where none appear in the Constitution.
In general, these rules evolve over time, becoming more specific as more situations arise. I’d be surprised to have highly specific rules as the result of one of the first forays into the Emoluments landscape.
Cool! Thanks for the clear and elucidating answers!
You could have mentioned that yesterday instead of being amused at the idea of the Supremes hearing witnesses.
I was pointing out that the Supreme Court did not have original jurisdiction, which your posts sort of suggested it did.
But I could have made the point more clearly and much less snarkily, and for that I apologize.
Actually, at first I was just assuming it would eventually reach the Supreme Court then I realized I wasn’t sure about whether or not it was an original jurisdiction case for the Supremes.
Anyway, no worries. You got me to look up that Special Master appointment before you posted about it. You made me realize that witnesses and showing evidence wouldn’t work well but I knew there had to be some way they did it.
True, DC might not have standing.
In a Union that has as its foundational principal the rule of law, how would bad faith not count as a grievous injury? How are they to remain confident in their future?
Sorry for the triple-post, but let me try to do a better job of saying that last.
Let’s say that I have hired you, Bricker, to do some representation on my behalf with a 3rd party. As part of our contract, there is a clause stating that you cannot accept money or other goods from the 3rd party (i.e., so that I can trust that you are representing only my interests as you deal with the 3rd party).
The contract begins, some time passes, and due to some things that I observe that seem strongly indicative I believe that you have taken money from the 3rd party. You are denying this, and so you are refusing to pay the penalty for failing to abide by the rules of the contract, when I try to back out of it.
Do I not have standing to take you to court? Would I somehow have to prove before we could go to court (which, I will note, would be difficult as an individual without subpoena power) that not only had you taken money from the 3rd party but also actively negotiated with the 3rd party, against my interests, before I could claim standing?
I feel like that would be a patently ridiculous standard.
“Grievous,” it may or may not be, but “particularized,” it is not.
Parties to contracts have standing to sue to enforce their rights or claim damages pursuant to the contract, a concept called “privity.”
Any particular reason that privity would not count as standing for the purpose of a state and a clause of the Constitution? I’m sure I could find a goodly number of cites to the concept that the Constitution was viewed as a contract between the states.
I’m pretty sure the point is that you have to show specifically how you’ve been damaged. If I had a normal business deal but had a clause that said "you must to smile towards my cat every day at 3 a.m. ", what damages could I claim if that was ignored?
Nations are generally comprised of persons. I think you mean to say that we are to be ruled by [even-handed] laws, not by [temperamental & arbitrary] men.
To which I say, is Trump a law or a man?
Not the same kind of contract.
The answer is that the courts have never found standing under this theory.