Emoluments And Other Standing Problems
The law is very clear. And, it is the highest possible law - a part of the United States Constitution. But, enforcing it, particularly in the case of a President who violates it, by any means short of an impeachment, which can be circumvented by 34 Senators of the President's political party, is another thing.
The U.S. Supreme Court's rules on standing to sue takes the position that you can't have standing to sue as a taxpayer, as a U.S. citizen, or as a voter, on a wrong that affects everyone in the same way.
The U.S. Supreme Court recently held that the President is immune from criminal liability for his official acts, no matter how egregious (in a stark deviation from the widespread understanding at the time it ruled this way), in addition to being immune from lawsuits seeking money damages for his official acts.
Justice Department policy, and the structure of the Executive Branch also prevent federal prosecutors from prosecuting a sitting President, and the President's authority over the Justice Department, together with his pardon power, allows the President to shield anyone he favors from federal criminal prosecutions.
The U.S. Supreme Court hasn't directly ruled on the issue, but at least one lower court (in the criminal case against Trump involving his refusal to turn over documents with government nuclear secrets which he kept in his residence after he left office and refused to return upon demand) has held that special prosecutor statutes are unconstitutional, in an extension of the (until recently fringe) "unitary executive theory."
The same problem does not arise to nearly the same extent in state government. Almost every U.S. state has an independently elected state attorney general who can prosecute misconduct in other parts of the state government, and the federal government can also step in to prosecute state and local government corruption and violations of civil rights as a federal offense. The subject-matter jurisdiction of state courts is also not subject to the same level of strict limitations as the federal courts are by Article III of the U.S. Constitution.
This problem isn't unique to the Emoluments clause either. It comes up frequently in Establishment clause violations of the First Amendment. It can come up when one part of the federal government illegally shares confidential information with another part of the federal government. It comes up when the executive branch spends federal government money without a Congressional appropriation to support it. It comes up when a President orders a violation of the Posse Comitatus Act and then pardons anyone who was involved in it. And, there are many other contexts where serious violations of the law within the executive branch have no viable remedy.
In some cases, an entire house of Congress can, by majority vote, authorize a lawsuit against the Executive Branch in federal court, but this is cumbersome and rendered frequently ineffectual by partisan politics. In some cases, a federal government chartered corporation, like the Public Broadcasting Corporation, can have independent standing to sue and by sued under a statutory grant of federal authority.
But, there is no systemic solution to this problem in existing federal law. Mostly, we just have to trust the President to do the right thing, but not all Presidents have earned this trust, and certainly, our current President has not. This is a glaring flaw in American Public Law.
Solutions
There are plausible solutions which could be imagined that would set aside the usual rules of standing on the grounds of necessity. We could grant the federal courts the authority to deputize a special prosecutor to pursue these issues. We could grant standing to pursue these issues to state attorneys-general. We could allow Congress to create an independent agency (perhaps one located in the judicial or the legislative branch with no Presidentially appointed directors or board members from an organizational chart and constitutional perspective) to pursue these claims. We could vest this authority in former U.S. Presidents who are still living, or the candidate that was the runner up in the last Presidential election.
Possible Constitutional Amendments
Perhaps we need an "anti-corruption" constitutional amendment, although conceptually, maybe this could be broken into several components. Consider this package to six constitutional amendments (and to be clear, some of those could also be accomplished without constitutional amendments):
Anti-Corruption And Standing Amendment
* Create an agency that has standing to take criminal, and civil legal action with national effect), to enforce federal law, to render advisory ethics opinions, and to protect the rule of law within the federal government (perhaps with a director appointed by a governing board made up of federal judges chosen at random),
* Prohibit federal elected officials from having a role in, or knowledge of, the management of private businesses or investments while in office,
* Prohibit self-dealing and conflicts of interest by federal officials including the President,
* Prohibit felons from serving as President unless that disability is removed by the same means as an insurrection disability is removed,
* Prohibit members of Congress from serving while serving a sentence for a felony,
* Authorize removal of members of Congress without being formally expelled from office by the House where someone is a member by the courts for various grounds established by law constituting good cause,
* Expressly authorize the appointment of special prosecutors by a three U.S. District Court judge panel, where the Justice Department is conflicted, or where the federal government fails to prosecute a crime when a preponderance of evidence, beyond mere probable cause, shows that it was committed by the proposed defendant,
* Authorize facial challenges to the constitutionality of legislation and regulations by the anti-corruption agency and by state attorneys-general, even in the absence of a case or controversy or other proof of standing,
* Create standing to enforce the establishment clause by any person who resides in, or is detained by, the territory of a government that is alleged to have violated it,
* Expand the scope of grounds for impeachment to include a willful and persistent failure to faithfully execute the laws in violation of one's oath of office, or a willful defiance of a court order.
* Try impeachments before a panel of judges rather than by the U.S. Senate,
* Prohibit judges appointed by a President from serving as a judge in any court proceeding in which the appointing President is a party in a non-official capacity (including any criminal prosecution),
* Mandate that Congress pass appropriate legislation to thwart judge shopping,
* Create binding ethics rules for the U.S. Supreme Court and lower courts that can be enforced without utilizing the impeachment power by state attorneys-general, but some minority percentage of Senators, or by an anti-corruption agency, and
* Provide additional remedies for courts when federal government officials disobey court orders (including the permanent removal of an official from office, and the appointment of a special master to carry out the duties of the defiant official).
Immunity Amendment
* Overrule the U.S. Supreme Court's recent Presidential immunity ruling creating blanket immunity from criminal prosecution for a President's official acts,
* Forfeit immunity from civil lawsuits for money damages for acts that an official has been legally adjudicated to have committed in a criminal case or civil proceeding,
* Allow immunity from civil or criminal liability for federal government officials exclusively when Congress authorizes it by law, including, but not limited to Presidential immunity and qualified immunity for law enforcement,
* Prohibit stripping all courts of the authority to consider any matter,
* Narrow the political questions doctrine, and
* Make clear that there is no immunity from contempt of court liability.
Anti-Tyranny Amendment
* Impose limitations on the prosecution of state and local government officials by federal officials while they are performing their official duties (perhaps limiting such prosecutions to the anti-corruption agency),
* Make the Posse Comitatus Act a matter of self-executing constitutional law and to allow its enforcement in civil actions as well as by criminal prosecutions,
* Provide a self-executing, federal, private cause of action for compensatory, economic and non-economic damages including litigation costs and attorneys fees and/or injunctive relief, for any deprivation of federal rights constitutional or statutory, under color of state or federal law, against the government under whose authority or actions or inactions the deprivation was made, on a strict liability basis without regard to the intent of the government or governmental agents or employees doing so, and with no form of immunity (in a matter akin to the takings clause),
* Provide an absolute right to have criminal convictions vacated upon a showing of actual innocence by a preponderance of the evidence,
* Create a right to counsel in deportation actions and to bring habeas corpus petitions,
* Remove the "subject to the jurisdiction thereof" (which applies only to a handful of children of diplomats anyway) and "Indians not taxed" provision (which was legislatively mooted in 1924) from the grant of birthright citizenship in the 14th Amendment,
* Prohibit criminal defamation laws,
* Prohibit laws barring travel from one state to another in order for the person doing so to avail themselves of another state's law,
* Prohibit laws barring interstate communications about a matter that is legal to communicate about in either state,
* Prohibit revocation of immigration status based upon speech which would be protected by the First Amendment for a U.S. citizen,
* Prohibit involuntary denaturalization under any circumstances (even in the naturalization was secured by fraud which could be prosecuted but could not result in loss of U.S. citizenship), and
* Expressly include the limitation on the suspension of habeas corpus to places where the federal courts are not open established by Ex Parte Milligan and to clarify that the writ of habeas corpus is available to person detained outside the territory of the United States by the federal government or its agents or contractors.
Election Law Amendment
* Make Section 3 of the 14th Amendment (the insurrection clause) self-executing in any local, state, or federal tribunal with jurisdiction over qualifications to hold public offices or elections for those offices,
* Create eligible voter standing to enforce election laws including campaign finance laws, and constitutional provisions related to elections in jurisdictions where the voter has a right to vote,
* Remove the authority of Congress to resolve disputes over the election or qualifications of their members or the validity of duly certified state elections for federal offices, vesting that authority, instead, in the courts,
* Invalidate all statutory confidentiality rights other than attorney-client privilege and religious confession privilege for anyone running for, or holding, a federal elective office,
* Remove the authority of state legislatures to appoint electors for the President by any means other than a vote of the people,
* Require federal elections be administered at the state and local level by officials who are not partisan elected officials or appointees of partisan elected officials,
* Authorize non-criminal remedies for false statements of presently existing facts, or false statements related to voting, made with actual malice, in connection with political speech, and
* Constitutionally overrule Citizens United which constitutionally prohibits any rigorous campaign finance regulation.
Pardon Power Amendment
* Expressly prohibit the President from pardoning himself, or members of his family, or a President who appointed the current President to the office that put him in the line of succession to be President,
* Prohibit pardons from contempt of court sanctions whether civil or criminal,
* Invalidate pardons for criminal conduct taken in reliance on a promise from the President that it would be pardoned, or issued in exchange for any consideration,
* Require notice of all pardons and commutation (other than a stay of execution) to be transmitted to Congress to be effective, and to subject them to a legislative veto in the same way as a veto override that must be acted upon with a certain period of time (perhaps 35 days) after it is transmitted to Congress.
Congressional Supremacy Amendment
* Clarify that Congress has plenary authority over the operations and organization of the Executive branch, and over how the President exercises his discretion in any matter whatsoever of which the constitution or statutes grants him authority, which the President has no authority to contradict,
* Require all Executive Orders purporting to impact anyone outside of the Executive branch of the federal government to be transmitted to Congress and paused until ratified by both houses of Congress, or until three weeks have elapsed, before taking effect, and to allow either house of Congress alone, by majority vote, to repeal any Executive Order,
* Legalize legislative veto legislation (retroactively),
* Confirm the authority of Congress to pass anti-impoundment legislation,
* Confirm the validity of civil service protections for public servants,
* Confirm the validity of government contracting rules established by Congress,
* Constitutionally disavow the "unitary executive" theory by expressly allowing Congress to create independent agencies whose directors, boards, and staff cannot be dismissed or directed by the President,
* Validate the constitutionality of laws such as the Administrative Procedures Act which governs how executive branch discretion may be exercised,
* Provide that Congress has the authority to waive any claim of executive privilege made by the President, and
* Constitutionally ratify the authority of Congress to pass legislation like the War Powers Act.
No comments:
Post a Comment