In case you’re following the foreign emoluments cases against the President, and were disappointed when Southern District of New York Judge George Daniels dismissed one of the cases for lack of standing, Leah Litman and Daniel Hemel provide an overview and reason to hope for reversal on Take Care. I particularly enjoyed this part of the analysis:
Source: Alice In Wonderland
Finally, and most surprisingly, the district court concludes that the plaintiffs’ foreign emoluments claims “are not ripe for adjudication” because Congress has not chosen “to confront the defendant over a perceived violation of the Foreign Emoluments Clause.”
This is stunning. The Foreign Emoluments Clause says that the President cannot accept emoluments from foreign governments without Congress’s consent. The district court’s opinion implies that the judiciary can’t do anything about the President’s violations of the Foreign Emoluments Clause until Congress explicitly expresses its nonconsent. This is an inversion of constitutional text that would make Lewis Carroll proud. Plus, when does the court think that the case would be ripe for adjudication? When Congress says what the Constitution already does: that the President is prohibited from accepting foreign emoluments without prior congressional authorization and cannot receive domestic emoluments under any circumstances? Or would it remain unripe because Congress still could change its mind?
The other reasons Daniels gives for lack of standing are more reasonable; this one strikes me, a non-lawyer, as a joke.
If we were in a normal political era, the proper procedure, to my mind, would have the President requesting permission from Congress to receive these emoluments, and then proceeding on from there once Congress has rendered a decision. But we’re in an era of childish self-centeredness in the current Administration, where procedure is much akin to that used in Wonderland; Judge Daniels has merely added to the ambiance with this bit of mysterious “reasoning”.
