“The Members can, and likely will, continue to use their weighty voices to make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit. But we will not — indeed we cannot — participate in this debate,” read the unsigned order.
Because the panel of appellate judges spanned the ideological spectrum — Judge David S. Tatel was nominated by President Bill Clinton, Judge Thomas B. Griffith by President George W. Bush and Judge Karen LeCraft Henderson by President George H.W. Bush — it seemed unlikely that the Supreme Court would intervene.
“The Founders adopted the foreign emoluments clause because they believed America would be harmed if federal officeholders, including the president, made policy decisions based on their own self-interest rather than the national interest,” said Elizabeth Wydra, president of the Constitutional Accountability Center, which filed the lawsuit on behalf of the lawmakers. Because the Supreme Court passed on the case, she added, “this critical anti-corruption provision of our Constitution has been weakened, and the American people are the worse off for it.”
The rarely tested language at issue in the case bars U.S. officials from accepting payments, benefits or other “emoluments” from foreign governments without the consent of Congress. The provisions once appeared to be a prime opportunity for Trump’s critics to force the president to change his business tactics or at least get him to disclose more about his company.
The D.C. Circuit’s ruling did not address the underlying merits of the challenge or delve into the novel questions of what constitutes an “emolument.”
Instead, the judges pointed to past Supreme Court decisions, which the judges said bar individual lawmakers from bringing lawsuits on behalf of the entire body.
“Our conclusion is straightforward because the Members — 29 Senators and 186 Members of the House of Representatives — do not constitute a majority of either body and are, therefore, powerless to approve or deny the President’s acceptance of foreign emoluments,” the court ruled.
The congressional case reached the D.C. appeals court after Judge Emmet G. Sullivan cleared the way for lawmakers to issue 37 subpoenas seeking financial information, interviews and other records, including ones related to Trump Tower and his Mar-a-Lago Club in South Florida.
But that request was put on hold after the appeals court stepped in midstream and intervened — at Trump’s request and with Sullivan’s consent — to consider the untested separation-of-powers issues.
The case was Blumenthal v. Trump.