The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct

• Author: Josh Blackman and Seth Barrett Tillman
• Position: Professor, South Texas College of Law Houston/Associate Professor, Maynooth University Department of Law, Ireland
• Pages: 163-223

ARTICLES

The Unresolved Threshold Issues in the

Emoluments Clauses Litigation: The President Has

Three Bodies and There Is No Cause of Action for

Ultra Vires Conduct

JOSH BLACKMAN* AND SETH BARRETT TILLMAN**

ABSTRACT

Shortly after President Trump’s January 2017 inauguration, he was sued for

violating the Foreign and Domestic Emoluments Clauses. The plaintiffs alleged

that Trump’s acceptance of profits from foreign and domestic state governments

violated these once-obscure provisions of the Constitution. We filed amicus

briefs in these cases, and we made two arguments that had implications for sep-

aration of powers jurisprudence.

First, the plaintiffs erred by suing President Trump in his “official capacity.”

Under settled case law, a government officer violates the Constitution in his official

capacity if—and only if—a government policy or custom must have played a part in

the violation of federal law. Still, the plaintiffs never alleged that President Trump

acted pursuant to any government policy or custom. Nor did the plaintiffs allege that

Trump acted “under the color of law”—a precondition for pleading an individual-

capacity claim. Rather, these cases concerned alleged conduct that President Trump

took personally. With respect to the Emoluments Clauses, the President has three

bodies or capacities, and, as such, he can be sued in three distinct fashions: [1] an

official-capacity claim involves a government policy or custom; [2] an individual-

capacity claim involves action taken by a government officer under the color of law;

and [3] a personal claim involves private conduct, absent state action.

We identified a second jurisdictional problem. The plaintiffs argued that the

federal courts had equitable jurisdiction to halt ultra vires action by a government

officer. To support this argument, the plaintiffs contended that federal district

courts could issue an injunction—an equitable remedy—against the President.

This argument conflated equitable jurisdiction and equitable relief. A plaintiff can-

not establish equitable jurisdiction merely by seeking equitable relief. Rather, the

plaintiffs must invoke a traditional equitable cause of action that was judicially

recognized by 1789, or a cause of action that was created by Congress or the

courts. The Supreme Court has not recognized a free-floating equitable cause of

action to challenge ultra vires conduct by government officers.

* Professor, South Texas College of Law Houston. © 2022, Josh Blackman & Seth Barrett Tillman.

** Associate Professor, Maynooth University Department of Law, Ireland. Roinn Dlı

´ Ollscoil Mha

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163

Ultimately, the Supreme Court did not settle these issues, or any others pre-

sented by the Emoluments Clauses litigation. After President Biden’s inaugura-

tion, the Supreme Court vacated the lower-court judgments that ran against the

President, and ordered the courts of appeals to dismiss the cases as moot.

As the Emoluments Clauses litigation fades in the rear-view mirror, this

Article offers a retrospective of these two unresolved threshold issues. Our arti-

cle also provides some guidance on how to litigate future allegations that the

President personally violated the Constitution.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

I. THE EMOLUMENTS CLAUSES LITIGATION . . . . . . . . . . . . . . . . . . . . 170

A. CREW v. Trump. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

B. Blumenthal v. Trump . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

C. District of Columbia v. Trump . . . . . . . . . . . . . . . . . . . . . . . . 175

1. The Official-Capacity Claims . . . . . . . . . . . . . . . . . . . . . 175

a. Litigation in the District of Maryland . . . . . . . . . . . 176

b. Fourth Circuit Panel Decision . . . . . . . . . . . . . . . . . 176

c. Fourth Circuit En Banc Decision . . . . . . . . . . . . . . . 178

2. The Individual-Capacity Claims . . . . . . . . . . . . . . . . . . . 179

a. District of Maryland . . . . . . . . . . . . . . . . . . . . . . . . 180

b. Fourth Circuit Panel Decision . . . . . . . . . . . . . . . . . 186

c. Fourth Circuit En Banc Decision . . . . . . . . . . . . . . . 186

3. On Appeal to, and on Remand from, the Supreme Court . 187

II. THE PLAINTIFFS SUED PRESIDENT TRUMP IN HIS OFFICIAL

CAPACITY, BUT THEY COMPLAINED OF QUINTESSENTIALLY

PERSONAL CONDUCT TAKEN BY DONALD J. TRUMP AND BY

TRUMP-AFFILIATED PRIVATE COMMERCIAL ENTITIES . . . . . . . . . . . 188

A. Government Officers Can Commit Torts in Three Distinct

Fashions: Official Capacity, Individual Capacity, and

Personally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

B. Four Provisions of the Constitution Can Be Violated in Three

Fashions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

164 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:163

1. The Thirteenth Amendment Can Be Violated in Three

Fashions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

2. The Twenty-First Amendment Can Be Violated in Three

Fashions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

3. The Foreign and Domestic Emoluments Clauses Can

Also Be Violated in Three Fashions . . . . . . . . . . . . . . . . 196

C. The President Has Three Bodies . . . . . . . . . . . . . . . . . . . . . . 198

D. In the Emoluments Clauses Litigation, the Plaintiffs Lacked

Standing to Sue President Trump in His Official and

Individual Capacities; He Could Only Be Sued Personally. . . 202

1. President Trump, in His Official Capacity, Did Not

Cause, and Therefore Cannot Redress, Plaintiffs’ Alleged

Injuries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

2. President Trump, in His Individual Capacity, Did Not

Cause, and Therefore Cannot Redress, Plaintiffs’ Alleged

Injuries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

3. The Plaintiffs’ Alleged Injuries Could Only Be Traced to

Trump’s Personal Conduct . . . . . . . . . . . . . . . . . . . . . . . 205

III. THE PLAINTIFFS LACKED AN EQUITABLE CAUSE OF ACTION AND

THEREFORE THE DISTRICT COURTS LACKED EQUITABLE

JURISDICTION TO HEAR THESE CASES . . . . . . . . . . . . . . . . . . . . . . . 208

A. Litigants Often Conflate Law with Equity, and Conflate

Equitable Relief with Equitable Jurisdiction . . . . . . . . . . . . . 208

B. Litigants Often Conflate Causes of Action Grounded in Law

with Equitable Causes of Action. . . . . . . . . . . . . . . . . . . . . . . 209

C. The Plaintiffs Did Not Assert a Traditional Equitable Cause of

Action that Established Federal Court Jurisdiction . . . . . . . . 214

D. The Supreme Court Has Not Recognized a Free-Floating

Equitable Cause of Action to Challenge Ultra Vires

Government Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

1. Ex Parte Young Did Not Involve an Equitable Cause of

Action to Challenge Ultra Vires Government Conduct . . 217

2. Larson Did Not Involve an Equitable Cause of Action to

Challenge Ultra Vires Government Conduct . . . . . . . . . . 219

3. Free Enterprise Fund Did Not Involve an Equitable Cause

of Action to Challenge Ultra Vires Government Conduct 219

2022] UNRESOLVED ISSUES IN THE EMOLUMENTS LITIGATION 165