Shugerman and Rao on Emoluments and the Political Questions Doctrine

Jed Handelsman Shugerman, Fordham Law School, and Gautham Rao, American University, have posted Emoluments, Zones of Interests, and Political Questions: A Cautionary Tale, which appears in the Hastings Constitutional Law Quarterly 45 (2018): 651-670:

As the Supreme Court addresses partisan gerrymanders in 2018, the “political question” doctrine is facing intense scrutiny. Will the Court tackle the problem or punt once again? It turns out that other high-profile cases in the lower courts offer a perspective on the political question doctrine. The Emoluments cases offer a cautionary tale about the use of the political question doctrine, and how the political question doctrine is too often an unconsciously tempting escape for judges facing challenging legal questions. The dismissal by the Southern District of New York in CREW v. Trump avoided reaching the merits of the emoluments claims by finding that the plaintiffs do not have standing to bring the suit. The decision contains serious errors in its zone of interests analysis and its political question analysis. In this essay, we argue that the plaintiffs are clearly in the zone of interests of the Emoluments clauses and that the political question analysis is out of step with a half dozen justiciable clauses of the Constitution. These errors are a sign of trying too hard to avoid the merits. There are certainly times when it is appropriate for courts to invoke the political question doctrine, but this episode is a reminder for judges to slow down and reflect when it may be an intuitively appealing resolution, but in fact, it is a dodge of a tough constitutional issue.

H/t: Legal Theory Blog