Is the emoluments clause enforceable?

SH76 or no1maruder - You folks know this better than any of us, is this really enforceable, or is this just some old blue law no one pays any attention to? On the surface it looks like President Trump is guilty on several fronts here, but the courts have not seen fit to do much about this, even as Donald Trump Jr. is in India huckstering for his father's company and peddling access to the President.

https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

Originally posted by @mchill
SH76 or no1maruder - You folks know this better than any of us, is this really enforceable, or is this just some old blue law no one pays any attention to? On the surface it looks like President Trump is guilty on several fronts here, but the courts have not seen fit to do much about this, even as Donald Trump Jr. is in India huckstering for his father's com ...[text shortened]... ident.

https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

Well, yes, it's enforceable. But the question is who is going to enforce it and by what remedy.

Let's start with the courts. I don't really see a mechanism by which they enforce it. Crimes are defined by the United States Code, not the Constitution. As far as I know, there is nothing in the Code making it a crime for a President to violate the emoluments clause.

Courts can declare an act of the Executive unconstitutional. So, theoretically, there could be a court ruling that President Trump violated the emoluments clause, but I have trouble seeing how a case would get into federal court about that. Someone needs to have standing to sue first. Someone needs to show a legally cognizable injury that he suffered because of Trump's violation of the emoluments clause. Very difficult. But even assuming someone could do that, what would the remedy look like? Perhaps an injunction to comply with the emoluments clause henceforth? Maybe. But courts are equally likely to decline to hear that type of case under the "political question" doctrine.

Congress could enforce the clause with its impeachment power. Is violation of the emoluments clause a "high crime or misdemeanor"? Well, that's really up to Congress to decide as nobody has ever really given a binding definition of the impeachment grounds.

So, yes, Congress could enforce it by impeaching him. But the courts? Doubtful.

Originally posted by @sh76
Well, yes, it's enforceable. But the question is who is going to enforce it and by what remedy.

Let's start with the courts. I don't really see a mechanism by which they enforce it. Crimes are defined by the United States Code, not the Constitution. As far as I know, there is nothing in the Code making it a crime for a President to violate the emoluments cl ...[text shortened]... ent grounds.

So, yes, Congress could enforce it by impeaching him. But the courts? Doubtful.

To whom does the emoluments clause apply?

Originally posted by @sh76
Well, yes, it's enforceable. But the question is who is going to enforce it and by what remedy.

Let's start with the courts. I don't really see a mechanism by which they enforce it. Crimes are defined by the United States Code, not the Constitution. As far as I know, there is nothing in the Code making it a crime for a President to violate the emoluments cl ...[text shortened]... ent grounds.

So, yes, Congress could enforce it by impeaching him. But the courts? Doubtful.

SH - If you don't really see a mechanism by which they enforce it, then what's point in having it? Is this a law, or just a set of suggested guidelines?

Maybe it's time to re write this piece of legal wisdom in such a way that it can be enforced, free of interference from the President or Congress, and carries with it substantial penalties for violating it. Right now it's about as useful as a 1797 city ordinance about walking your dog after midnight. 😞

Originally posted by @mott-the-hoople
To whom does the emoluments clause apply?

Every Federal official:

8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

US Constitution, Article I, sec. 8

Originally posted by @no1marauder
Every Federal official:

8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

US Constitution, Article I, sec. 8

Presumably the remedy for a president who violates this provision is impeachment and removal of office.

So let's get on with it. Hurry, Mueller!

Originally posted by @no1marauder
Every Federal official:

8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

US Constitution, Article I, sec. 8

This all sounds great, but I don't see it being enforced. No wonder Trump thumbs his nose at it.

Originally posted by @mchill
This all sounds great, but I don't see it being enforced. No wonder Trump thumbs his nose at it.

Congress has to enforce it. Rethuglicans control Congress. Ergo, corruption and graft are allowed to run rampant.

We'll see what happens if the Democrats can get at least partial control of Congress in November.

Originally posted by @soothfast
Presumably the remedy for a president who violates this provision is impeachment and removal of office.

So let's get on with it. Hurry, Mueller!

As far as I know, Mueller is not investigating him for Emoluments clause violations.

Originally posted by @sh76
As far as I know, Mueller is not investigating him for Emoluments clause violations.

My suspicion is that many of the Cheeto Benito's Russian connections are financial and therefore inextricably intertwined with his emoluments violations.

Al Capone was ultimately brought down by tax fraud.

Originally posted by @sh76
Well, yes, it's enforceable. But the question is who is going to enforce it and by what remedy.

Let's start with the courts. I don't really see a mechanism by which they enforce it. Crimes are defined by the United States Code, not the Constitution. As far as I know, there is nothing in the Code making it a crime for a President to violate the emoluments cl ...[text shortened]... ent grounds.

So, yes, Congress could enforce it by impeaching him. But the courts? Doubtful.

It's not so clear; there are two Federal court cases pending and one looks likely to proceed to discovery. https://www.politico.com/story/2018/01/25/trump-emoluments-lawsuit-369445

I despise the entire idea of the "political question" doctrine where Constitutional violations are alleged. It is the duty of the Federal courts to rule on the Constitution and this type of dodge is bad policy; it was repeatedly used to block review of Presidents' clear violations in making war without Congressional approval. But it's possible that the judiciary might duck on this one.

It would be a nice secondary charge in the impeachment trial, however. Trump's violations of the clause are quite obvious and blatant.

Originally posted by @no1marauder
Every Federal official:

8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

US Constitution, Article I, sec. 8

Office of profit or trust...who defines that?

"Here are two more historical examples. First, President George Washington publicly received gifts from French officials (the key to the French Bastille and a portrait of Louis XVI) without asking Congress’s permission. This suggests that he was not subject to the Foreign Emoluments Clause, which applies to a “Person holding any Office of Profit or Trust under [the United States].” Second, in 1792, Treasury Secretary Alexander Hamilton was instructed to report to the Senate “every” person holding “office … under the United States” and their salaries. His ninety-page list included every appointed officer, including those in the legislature, such as the Clerk of the House, but excluded elected officials such as the President, Vice President, and members of Congress. This suggests that some definitions of office will turn on whether one is elected rather than which branch one is in."

https://conlaw.jotwell.com/constitutional-officers-a-very-close-reading/

Originally posted by @mott-the-hoople
Office of profit or trust...who defines that?

"Here are two more historical examples. First, President George Washington publicly received gifts from French officials (the key to the French Bastille and a portrait of Louis XVI) without asking Congress’s permission. This suggests that he was not subject to the Foreign Emoluments Clause, which appl ...[text shortened]... h branch one is in."

https://conlaw.jotwell.com/constitutional-officers-a-very-close-reading/

The idea that the President of the United States is not a Person holding an office of trust is ludicrous.

Originally posted by @no1marauder
The idea that the President of the United States is not a Person holding an office of trust is ludicrous.

Take that argument to Alexander Hamilton. I simply showed the thinking of the people at the time the emoluments clause was created.