The Foreign Emoluments Clause requires federal officeholders, including the President, to first seek and obtain the consent of Congress before accepting any gifts, payments, or benefits from foreign states.  The Domestic Emoluments Clause prohibits the President from accepting any “emoluments” from the federal government, or state or local governments, other than his fixed presidential compensation.  President Trump has refused to do what prior Presidents have done and divest himself from his business holdings by establishing a blind trust. As a result, he has a continuing financial interest in businesses around the country and the world and is enriched every time his businesses receive benefits from foreign governments, the federal government, or state or local governments.

The President moved to dismiss this case on a number of grounds. CAC filed a friend-of-the-court brief on behalf of the lead plaintiffs in Blumenthal, et al. v. Trump, the lawsuit brought by more than 200 members of Congress against President Trump for violating the Foreign Emoluments Clause, in support of plaintiffs’ opposition to that motion to dismiss. Without reaching the merits of the plaintiffs’ claims, the District Court granted the government’s motion to dismiss, concluding that the plaintiffs lacked standing to sue, that the case presented a political question, and that the case was not ripe for adjudication. CREW appealed the district court’s ruling to the Court of Appeals for the Second Circuit.

On appeal, CAC filed a friend-of-the-court brief on behalf of Senator Richard Blumenthal and Representative Jerrold Nadler in support of the plaintiffs. In our brief, we explain that the congressional consent provision in the Foreign Emoluments Clause does not make this case a political question or unripe for adjudication. We also explain why Congress cannot redress the President’s violations of the Foreign Emoluments Clause. Finally, we explain why it is so important to our constitutional structure that federal officials obtain “the Consent of the Congress” before accepting any “present, Emolument, Office, or Title, of any kind whatever,” from a foreign state. Enforcing that clear and simple requirement is essential to preventing the corruption and divided loyalty among American leaders that the Framers feared, and that still threatens our nation today. By providing a lawful avenue through which federal officials may accept such benefits — one that is open to public scrutiny and that incorporates safeguards derived from the separation of powers — the “consent” provision discourages federal officials from accepting those benefits illicitly and in secret.

In September 2019, the Second Circuit vacated the district court’s decision and remanded the case for further proceedings, concluding that the plaintiffs have standing to sue President Trump, that their claims are ripe, and that the case does not present a political question.