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

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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