Fiduciary Injury and Citizen Enforcement of the Emoluments Clause

Meredith M. Render*

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 action—such as a private lawsuit? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent.

This Article presents that broader theory. The Article argues 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 may serve as the basis for a private cause of action to enforce the Clause. Drawing on both the historical and textual context of the Clause, this Article concludes that enforcement of the Emoluments Clause is a tool that the Constitution reserves for “the People” as a means of policing the political branches.

The Article then positions this fiduciary injury into the broader question of standing in constitutional cases. The Supreme Court’s paramount concern in the context of standing in constitutional cases is to avoid separation-of-powers conflicts. That goal is best served by a focus on primary versus collateral injuries, rather than the Court’s current (and unevenly applied) “concrete and particularized” standard. In constitutional cases, a focus on primary injuries is consistent with much of the Court’s existing standing doctrine and offers a more coherent, parsimonious, and elegant approach to standing. More importantly, a focus on primary injuries allows the Court to safeguard separation-of-powers principles while avoiding the absurd results that necessarily follow from the Court’s current posture.

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© 2020 Meredith M. Render. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, University of Alabama School of Law. I am grateful for exceptionally helpful insights from Heather Elliott, Larry Kramer, Mark Tushnet, David Fontana, Stephen Galoob, Ronald Krotoszynski, Michael Pardo, Stephen Lee, Andrea Roth, Beth Colgan, Briana Rosenbaum, Andrew Gilden, Andrea Wang, Seth Barrett Tillman, Josh Blackman, and participants in the 2018 Grey Fellows Forum at Stanford Law School.