One of the principle reasons partisan gerrymandering has not only survived but thrived in recent years is because judges have run away from any possible solutions by claiming it wasn’t their problem. This doctrine of avoiding the “political thicket” seemed, frustratingly, to re-enter the fray during Wednesday’s Supreme Court oral arguments on a Maryland gerrymandering case. But also on Wednesday, we may have actually taken a major leap forward on the “political-question doctrine” in another area where courts have been similarly reluctant to step in: emoluments. The Supreme Court would be wise to pay attention to a trial court that allowed an emoluments case against President Donald Trump to proceed, that is, to have the courage to enforce the Constitution in areas where it is clearly appropriate.
The political-question doctrine is the concept that a controversy is so essentially political that it is not “justiciable,” or essentially that it is not appropriate for courts to resolve. In some cases, it is true that a controversy is appropriately resolved by a president or by Congress, and not by the courts. But more often than not, judges simply misuse the political-question doctrine in order to dodge a tough legal question.
During the arguments in Benisek v. Lamone, five justices—from both wings of the court—nodded in this direction, noting that congressional districting is inherently political and thus irredeemably infused with partisan considerations. In a troubling sign that the court remains far from consensus after two recent rounds of arguments on the topic, Justice Stephen Breyer even suggested that the court might ask for a third round of briefs on remedies for political gerrymandering. This was a bad sign that the political-question dodge is very much alive on the court.
Meanwhile, just a few miles away in Maryland, a federal trial court offered some sign of hope that judges are not cowering before the daunting political-question doctrine. Judge Peter Jo Messitte denied President Trump’s motion to dismiss the emoluments suit brought by the Maryland and D.C. attorneys general, finding that they had standing to bring their challenge. This court confronted the political question head-on, ruling in favor of justiciability.
This decision countered the outcome in a separate emoluments case brought in New York, where a federal trial court rejected the plaintiffs’ standing claim, in part by mistakenly relying on the “political question.” That court made major legal errors in these parts of its decision, which were so basic as to suggest the court may have been unconsciously looking for a way to duck this case on procedural grounds. Both emoluments cases raise challenging legal and historical questions about its substance. But instead of addressing those substantive questions head-on, it used a procedural dodge. It held that the Foreign Emoluments Clause is a political question because—despite its explicit prohibition on officials receiving benefits from foreign states—it allows Congress the power to permit some foreign emoluments, if it so chooses.
The trial court in Maryland didn’t punt here. It framed the issue clearly: The political-question doctrine ought to provide only a “narrow exception” to the rule that the “[j]udiciary has a responsibility to decide cases properly before it.” Drawing on many other cases where courts adjudicated similar constitutional clauses, the court held:
A plain reading of the Foreign Emoluments Clause compels the conclusion that receiving emoluments, as have been provisionally defined here, is impermissible unless and until Congress consents
The Court is satisfied that this case ‘requires careful examination of the textual, structural, and historical evidence put forward by the parties,’ which, after all is ‘what courts do.’ The political question doctrine does not bar judicial review in this case.
While the Maryland court got the basic question correct, it did narrow this lawsuit in only allowing a challenge of payments to the Trump International Hotel in D.C. rather than to the entire Trump Organization. The Framers were concerned with foreign and domestic government entities using financial incentives of various kinds to corrupt federal officials, especially a chief executive, and undermine our federal system. As I and other legal historians documented in our amicus brief before this court, the Framers knew that, in the late 17th century, France’s Louis XIV had bribed two English kings, which led to their secret conversion to Catholicism, an ill-advised war with the Dutch, and ultimately the Glorious Revolution.
This infamous episode, known as the secret Treaty of Dover, was suspected widely by the English at that time, but English historians fully exposed it only in 1771, on the eve of the American Revolution. One key drafter discussed this scandal at the Philadelphia Convention, and two major legal commentators cited it to explain the Emoluments Clause, suggesting that there was a particular concern about chief executives’ financial entanglements with foreign states.*
Could anything similar be happening now with exceedingly favorable foreign loan deals or debt forgiveness? Maryland and D.C. have a fundamental interest representing themselves and their constituents to find out in order to try to protect our federal system against foreign and domestic corruption. The Supreme Court has further recognized that states have “special solicitude” for having standing in our federal system.
The district court did, however, explicitly acknowledge that other states and other plaintiffs might demonstrate other injuries in other localities and implicitly invited those plaintiffs to bring such suits. Moreover, the district court dismissed these plaintiffs’ broader claims “without prejudice,” which means that it intentionally left the door open for the plaintiffs to come back to court to point to new claims about the Trump Organization and perhaps revisit this portion of the standing ruling. With respect to the D.C. hotel, there are relevant questions about its financing, debts, and loans. The hotel and restaurant bills in New York are probably not relevant to D.C. and Maryland, but the Trump Organization’s overall finances are relevant to those jurisdictions—and to all states and all American citizens. As district judges hear arguments next about the history and scope of the Emoluments Clause and then approve discovery, they can and should allow discovery on those matters.
Notwithstanding limiting the scope of the suit at this stage, the federal district court sent a message to the president: Courts have the duty to examine the question of whether the president is accepting money from domestic and foreign states in violation of the Constitution. That duty similarly applies to partisan gerrymandering, and it’s one the Supreme Court ought not to shirk.
*Correction, April 3, 2018: This post originally stated that a key drafter at the Philadelphia Convention, referring to Gouverneur Morris, cited the secret Treaty of Dover episode to explain the Emoluments Clause. He discussed it at the convention, but he did not cite it to explain emoluments.