Fiduciary Injury and Citizen Enforcement of the Emoluments Clause

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 coherent.

This 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 branches.

More significantly, this Article presents the insight that, to date, separation-of- 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.

Keywords: constitutional law, standing, fiduciary political theory, constitutional theory, injury-in-fact, emoluments, emoluments clause, separation of powers, legal pragmatism, popular constitutionalism, populism, standing theory, standing doctrine, civil rights, anti-corruption theory, fiduciary injury