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Summer 2018




University of California Hastings College of Law




The “political question” doctrine is hotly contested in 2018, and perhaps on the verge of its biggest reversal since the Baker v. Carr revolution. Later this year, we will learn if the Supreme Court in Whitford v. Gill will regard extreme partisan gerrymandering as a violation of the First and Fourteenth Amendments, rather than as a nonjusticiable political question.1 It turns out that another high-profile case in the lower courts illuminates the use and misuse of the political question doctrine. The Emoluments cases, and in particular, the Southern District of New York’s dismissal of CREW v. Trump, 2 offers a cautionary tale about how the political question doctrine is too often an unconsciously tempting escape for judges facing challenging legal questions.

The Southern District of New York dismissed the first Emoluments case, CREW v. Trump. He avoided reaching the merits of the emoluments claims by finding that the plaintiffs do not have standing to bring the suit.3 While we disagree with the court on his application of competitor standing, it is a complicated and close question. The problem is that this decision contains many serious errors, so that it seems that these close questions did not receive adequate attention. Two of the court’s “prudential standing” holdings, on the “zone of interests” test and on the political question doctrine, are like the proverbial thirteenth and fourteenth strokes of the clock. To paraphrase the fictional case of Rex v. Haddock (and perhaps Mark Twain, and George Orwell’s 1984), those strokes are not only incorrect of themselves, but cast doubt on the preceding twelve.

First, we note that we are two of five coauthors of a legal historians’ amicus brief supporting the plaintiffs.4 Our brief does not discuss standing directly, but it does relate to the zone of interests of the Emoluments clauses. One reason we helped write this brief is that we thought that some of the plaintiffs had a strong claim for standing (particularly ROC United, the association of restaurants who are disadvantaged competitively by Trump’s use of office to draw foreign and domestic state business).

In this Essay, we will briefly describe the Emoluments cases filed against Trump. Then we will turn to the Southern District’s “zone of interests” argument, which reveals glaring problems. These errors cast a shadow on the “political question” analysis, which also contains basic errors. There are certainly times when it is appropriate for courts to invoke the political question doctrine. However, this episode is a reminder for judges to slow down and reflect on whether there may be an intuitively appealing resolution, lest claiming political question is just dodging a tough constitutional issue.

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