Document Type
Working Paper
Publication Date
1-18-2018
SSRN Discipline
Legal Scholarship Network; PSN Subject Matter eJournals; Political Theory eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network
Abstract
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 lawsuit If it can be enforced by private action who has standing to sue In the absence of textual guidance it is necessary to turn to a broader constitutional theory to render enforcement of the Clause coherentThis Article presents that broader constitutional theory The Article demonstrates 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 can serve as the basis for a private cause of action to enforce the Clause Drawing on historical context and the constitutional context of the Clause this Article demonstrates that enforcement of the Emoluments Clause is an example of a power that the Constitution reserves for "the People" to police the political branchesMore significantly this Article presents the insight that to date separationof powers analysis has neglected this important aspect of constitutional design The Supreme Court's constrained understanding of the role of "the People" in the development of constitutional law has been increasingly the subject of "populist" criticism from those who understand the Framers to have constructed a central rather than derivative role for "the People" While most of that criticism has been directed at the exclusive role that the judiciary plays in creating constitutional law this Article applies a similar critique in the context of constitutional enforcement
Recommended Citation
Meredith Render,
Citizen Standing and the Emoluments Clause,
(2018).
Available at:
https://scholarship.law.ua.edu/fac_working_papers/636