Happy Law Day, Happy Emoluments Day!

Today is Law Day, celebrating the rule of law in America. To celebrate, our team of legal historians (John Mikhail, Jack Rakove, Gautham Rao, Simon Stern and I) filed our amicus brief in the 2d Circuit on the history and meaning of the Emoluments Clauses. The brief is here.

Gautham and I also recently published an essay in the Hastings Constitutional Law Quarterly on this issue, titled “Emoluments, Zones of Interests, and Political Questions: A Cautionary Tale.” SSRN link here.

Abstract: As the Supreme Court addresses partisan gerrymanders in 2018, the “political
question” doctrine is facing intense scrutiny. Will the Court tackle the problem or
punt once again? It turns out that other high-profile cases in the lower courts offer
a perspective on the political question doctrine. The Emoluments cases offer a
cautionary tale about the use of the political question doctrine, and how the
political question doctrine is too often an unconsciously tempting escape for judges
facing challenging legal questions.
The dismissal by the Southern District of New York in CREW v. Trump avoided
reaching the merits of the emoluments claims by finding that the plaintiffs do not
have standing to bring the suit. The decision contains serious errors in its zone of
interests analysis and its political question analysis. In this Essay, we argue that
the plaintiffs are clearly in the zone of interests of the Emoluments clauses and that
the political question analysis is out of step with a half dozen justiciable clauses of
the Constitution. These errors are a sign of trying too hard to avoid the merits.
There are certainly times when it is appropriate for courts to invoke the political
question doctrine, but this episode is a reminder for judges to slow down and reflect
when it may be an intuitively appealing resolution, but in fact, it is a dodge of a
tough constitutional issue.

 

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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