Democrats' case against the Senate for not approving Garland rejected by Supreme Court
On Monday morning, the U.S. Supreme Court declined to review the case of Michel v. McConnell, where the courts below rejected a citizen’s effort to sue senators for inaction on D.C. Circuit Chief Judge Merrick Garland’s nomination to the Supreme Court.The Emoluments Clause appears to be a silver bullet for the left in its opposition to a Trump presidency. They see it as a King's X to his election. Jennifer Rubin at the Washington Post has been riding this hobby horse since election day. It is interesting that the issue was never raised when Barack Obama was making millions from the purchases of his books by foreigners.
The lower courts’ opinions explain why another controversial dispute, Citizens for Responsibility and Ethics in Washington (CREW) v. Donald J. Trump, will also fail—with only days left until the government’s response is due in that case.
Disappointed with the process of the Senate’s refusal to hold a vote on Garland’s nomination to the Supreme Court, Steven S. Michel sued Sens. Mitch McConnell, R-Ky., and Chuck Grassley, R-Iowa, for allegedly violating his constitutional right “to elect his senators by depriving his home-state senators of a voice” in the nomination process.
The U.S. Court of Appeals found, as did the district court below, that Michel “lacked standing to bring this action because he failed to demonstrate an injury in fact.” It found his “alleged injury—the diminution of the effectiveness of his votes for Senators—is ‘wholly abstract and widely dispersed.’”
As the district court wrote, Michel suffered only “the type of undifferentiated harm common to all citizens that is appropriate for redress in the political sphere,” not the courts. The Supreme Court appropriately denied Michel’s petition for review.
Lawyers with CREW face similar problems in their lawsuit, filed in January in the Southern District of New York, against President Donald Trump, because they also raise claims that do not touch their lives in any materially different way from any other citizen—except, perhaps, at the ballot box.
CREW argues that Trump violates the U.S. Constitution’s little-known Foreign Emoluments Clause whenever any of his businesses engage in any commercial transaction with any foreign state agent.
For several reasons related to its text and history, it is improbable that the clause—which was designed to keep ambassadors off of foreign states’ doles—is that broad. Nor is it so selective: Past presidents from George Washington to Barack Obama would likely have violated CREW’s far-reaching interpretation of that clause (explained here).