FIDUCIARY INJURY AND CITIZEN ENFORCEMENT OF THE EMOLUMENTS CLAUSE.

• Author: Render, Meredith M.

The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action--such as an impeachment proceeding by Congress--or is it also enforceable by individual action--such as a private lawsuit1? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent.

This Article presents that broader theory. The Article argues that the Emoluments Clause imposes a fiduciary duty on officers of the United States. When that duty is breached, all Americans suffer an undifferentiated injury, which may serve as the basis for a private cause of action to enforce the Clause. Drawing on both the historical and textual context of the Clause, this Article concludes that enforcement of the Emoluments Clause is a tool that the Constitution reserves for "the People" as a means of policing the political branches.

The Article then positions this fiduciary injury into the broader question of standing in constitutional cases. The Supreme Court's paramount concern in the context of standing in constitutional cases is to avoid separation-of-powers conflicts. That goal is best served by a focus on primary versus collateral injuries, rather than the Court's current (and unevenly applied) "concrete and particularized " standard. In constitutional cases, a focus on primary injuries is consistent with much of the Court's existing standing doctrine and offers a more coherent, parsimonious, and elegant approach to standing. More importantly, a focus on primary injuries allows the Court to safeguard separation-of-powers principles while avoiding the absurd results that necessarily follow from the Court's current posture.

INTRODUCTION I. THE FOREIGN EMOLUMENTS CLAUSE IN CONTEXT A. The Emoluments Clause's Duty of Loyalty B. Fiduciary Injury 1. Injunctive Relief for Purely Fiduciary Injury 2. Distinguishing Economic Injury from Fiduciary Injury 3. Primary Emoluments Injury as Fiduciary Injury II. STANDING AND FIDUCIARY INJURY A. The Pragmatism of Injury in Fact 1. A Pragmatic Explanation of CAP 2. The Pragmatic Explanation as Legal Fiction B. Undifferentiated Constitutional Injuries 1. Primary and Collateral Differentiated Injuries 2. The Primary-Injury Model in Individual-Rights Cases 3. Emoluments Harms as Undifferentiated Harms 4. Primary and Collateral Emoluments Violations: Services Rendered and Foreign State Favors C. Token Plaintiffs and Zones of Interest 1. The MD/DC Cases 2. The CREW Decisions 3. The Zone-of-Interests and CAP Analysis Versus the Primary/Collateral and Differentiated/ Undifferentiated Injury Analysis III. REPRESENTATIVE VERSUS DIRECT CONSTITUTIONALISM A. An Inconsistent Preference 1. The Floodgate Intuition 2. The Institutional Competence Intuition B. The People's Provisions 1. The Establishment Clause as a People's Provision 2. Standing and People's Provisions 3. The Role of the People in Enforcing the People's Provisions C. Direct Constitutionalism and Fiduciary Injury IV. A PRIMARY-INJURY MODEL OF CONSTITUTIONAL STANDING CONCLUSION INTRODUCTION

The presidency of Donald Trump has ignited much interest (1) in the Emoluments Clause. (2) At the time of publication, three separate lawsuits are pending in federal courts alleging that President Trump's decision not to divest from his business holdings prior to his inauguration has resulted in violations of the Clause. (3) The first lawsuit was filed in January 2017 by a nonprofit watchdog organization known as Citizens for Responsibility and Ethics in Washington (CREW). (4) The second suit was filed in June 2017 by the attorneys general of Maryland and the District of Columbia ("MD/DC"). (5) The third suit was also filed in June 2017 by 196 Democratic members of Congress (the "DEM" lawsuit). (6) The central claims of these complaints are strikingly similar. (7) There is even some overlap among the counsel of record in the cases. (8) What primarily distinguishes them from one another is the identity of the plaintiffs. The three lawsuits represent three distinct--and to some degree, creative--strikes at the same target: the Article III standing requirement. (9)

Specifically, the plaintiff profiles in these three cases have been crafted to meet the injury-in-fact standing requirement, which proscribes "generalized grievances." (10) It is unsurprising that these plaintiff profiles have been tailored with an eye to the standing requirement, as the generalized-grievance prohibition will present significant challenge to any emoluments lawsuit filed against a sitting President. Article III standing is, of course, a hurdle that all federal cases must clear, and as a doctrine it has long been criticized as "incoherent[t]," (11) "pointless," (12) and variously inadequate. (13) But in the context of an Emoluments Clause challenge, an unreflective application of current standing doctrine could serve as a significant obstacle to any lawsuit seeking to enforce the Clause. (14)

Against this backdrop, this Article introduces a new critique of standing doctrine--as well as a new understanding of existing critiques--by revealing the weaknesses of standing doctrine that are uniquely apparent in the context of an Emoluments Clause challenge to a sitting President. (15) This Article advances two related theses. The first thesis is that current standing doctrine fails to adequately account for the fiduciary injury that arises in the context of an emoluments violation. The second thesis is that current standing doctrine undervalues the important and constitutionally committed role that individual citizen suits play in enforcing constitutional provisions, like the Emoluments Clause, the sole purpose of which is to ensure that those subject to it will not be tempted to abrogate their duty of loyalty to the United States.

In support of those theses, this Article presents three key insights: first, that current standing doctrine fails to recognize or address the kind of fiduciary injury that is the primary injury that follows from an Emoluments Clause violation. When the Emoluments Clause is violated, a federal officer (such as the President of the United States) has breached his fiduciary duty to the people. When that happens each one of the people suffers an identical fiduciary injury. However, fiduciary injury is not cognizable under current standing doctrine, owed to the Court's categorical exclusion of "generalized grievances."

The second key insight is that the Supreme Court's disinclination to recognize fiduciary injury represents a substantive, normative preference for "representative constitutionalism" as the principle means by which separation-of-powers norms are enforced. The principle of "representative constitutionalism" assumes that separation-of-powers norms are best enforced through collective action (via elected representatives) rather than individual action (via individual citizen's lawsuits). This assumption is based on either or both of the following premises: (1) the Constitution itself--either structurally, expressly, or in light of the Framers' intent--requires collective rather than individual enforcement of the Clause; or (2) collective action is pragmatically better suited to safeguard the fiduciary duty enforced by the Clause, without sacrificing (and while simultaneously protecting) separation-of-powers norms. However, neither of these assumptions are justified in the context of an Emoluments Clause violation. The available evidence surrounding the Clause suggests that the Framers contemplated a robust and direct role for the people in enforcing constitutional norms. Moreover, a direct role for citizen participation in policing the political branch is particularly apt when the threat to be remediated is external (undue foreign influence) rather than internal (e.g., the judicial branch usurping the role of the executive branch). While the Court's preference for representative constitutionalism may have merit in other constitutional contexts, it is inapposite in the context of a fiduciary injury, which itself represents the failure of collective action to adequately protect the interests of the people.

The third key insight is that "direct constitutionalism," rather than representative constitutionalism, is the principle most suited to redressing an undifferentiated fiduciary injury in general and in the Emoluments Clause context in particular. Direct constitutionalism posits that the Constitution (structurally, expressly, and in light of the Framers' intent) requires that "the People" play a direct role in safeguarding certain democratic norms, and that as a practical matter, permitting "the People" to play an individual and direct role is the best means of safeguarding certain democratic norms. (16) Thus, the principle of direct constitutionalism is a better fit than representative constitutionalism for enforcing the Emoluments Clause.

These arguments are presented in the following format. Part I offers an introduction to the Foreign Emoluments Clause, providing a history of the Clause. Part I also provides a foundation for the argument that a violation of the Clause produces a fiduciary injury. Part II explains how the Supreme Court's prohibition of "generalized grievances" operates as an unnecessary obstacle in the emoluments context by failing to recognize the fiduciary injury at the heart of an emoluments violation. By dissecting the primary injury that follows from an emoluments violation and disaggregating it from the types of collateral injuries that are the focus of the Court's standing doctrine, this Part reveals that the categorical exclusion of generalized grievances in the emoluments context leads to absurd results. Part III posits...