Notice & Comment

District Court Adopts Purpose-Based Approach in Emoluments Lawsuit

This week, a federal district court ruled that a lawsuit brought by D.C. and Maryland under the Foreign and Domestic Emoluments Clauses, against President Trump, could proceed. See D.C. v. Trump, 2018 WL 3559027 (D. Md. 2018). The decision is notable because it offers the first extended judicial interpretation of “emolument,” as that term appears in the Constitution.

The parties had set forth two competing interpretations of emolument. As understood by the court, the DOJ argued that an emolument referred “only to the payment for services rendered by a federal official in his official capacity,” while the plaintiffs argued that the term encompassed anything of value. See id. at *19. The district court accepted the plaintiffs’ definition, “with slight refinements.” See id. at *2.

In reaching its conclusion, the court decided that it should apply a “blend of textualism and purposivism.” See id. at *5. Regarding the textualism approach, the court concluded that the better definition of emolument reached “anything of value.” However, because that textual definition would lead to absurd results, the court invoked purposivist principles to limit it. The court believed that “the Framers were fundamentally concerned with transactions that could potentially influence the President’s decisions in his dealings with specific foreign or domestic governments, not with de minimis situations.” See id. at *19. Thus, for example, benefits that were “fully vested and indefeasible before the federal official became a federal official” would not qualify as emoluments, with “the rationale being that the benefit would lack any potential to influence the federal office-holder in his decision-making.” See id. at *23.

Although the court nominally styles its analysis as a blend of textualism and purposivism, the opinion, at bottom, applies a solely purpose-based analysis. Whether the court started with the DOJ’s offered textual definition or the plaintiff’s offered textual definition, the court’s final interpretation rested on the clause’s perceived purposes — arrangements with foreign governments which potentially influence a federal official’s decision-making count as emoluments.

Also, in no way could the court’s interpretation plausibly reflect a textual approach. One can find various dictionaries supporting the DOJ’s definition, and one can find various dictionaries supporting the plaintiffs’ definition, but no dictionary has ever defined an emolument as “anything of value but with some de minimis exceptions where potential of corruption does not exist.” Purposivism controlled the analysis.

Whether courts in other pending cases will rule similarly to the court here depends on their interpretive approaches. As I have explained elsewhere, virtually every legal authority offering a textual definition of “emolument” provides that the term reaches only compensation for services personally performed. See Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. 639 (2017). Thus, any text-based court should adopt the DOJ’s definition, with some changes (more on that here). However, a purpose-based court might apply a definition similar to the one in D.C. v. Trump, and could draw from authorities generally emphasizing the purposes of the clauses.  

Given the variation in the interpretive approaches among the judges populating the district and appellate courts, it is impossible to predict which approach any one of those courts would adopt. However, I have little doubt that the Supreme Court would adopt a text-based approach to the Foreign and Domestic Emoluments clause, especially after the next Justice is confirmed. Though that may provide comfort to persons who remain skeptical of the emoluments lawsuits, many things can happen before any case finally reaches 1 First Street.

Follow me on Twitter: @AndyGrewal

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