by Jed Shugerman, Professor of Law, Fordham University School of Law
*This piece was originally posted on October 20, 2017 on Shugerblog.
On Wednesday, Judge Daniels of the Southern District of New York heard arguments in CREW v. Trump, the first Emoluments case, on the Department of Justice’s motion to dismiss. The case is its own self-contained course in constitutional law and civil procedure, covering a dizzyingly broad range of subjects and methods of interpretation. The primary debates so far have been on whether the plaintiffs have standing and on the meaning of the word “emolument.”
Meanwhile, a secondary question has been in the background: Is the Foreign Emoluments Clause solely a question for Congress, not the courts? If so, it would be a “non-justiciable” political question. This clause has never been addressed in the courts, so it is a new question. I think most observers were surprised that Judge Daniels spent so much time on this possibility and seemed so sympathetic to the argument that his court could dismiss the case by punting it to Congress.