Disgorging Emoluments

This Article is about unjust enrichment. It includes a theory of an unjust enrichment cause of action against executive actors who receive unlawful emoluments. Interpretations of the boundaries of unlawful emoluments range from receipt of a gift or benefit because of the position of power held to quid pro quo exchanges of a thing of value in exchange for government information or advantage. Wherever the proper line, the purpose of the law of unjust enrichment is to prevent and undo benefits one has no right to retain. It achieves those goals with the use of restitution remedies including disgorgement of unjust profits. Unjust enrichment is particularly suited to remedy wrongful emoluments because the goal is to undo improper gain rather than compensate for any plaintiff losses. Unjust enrichment law and restitution-based remedies law are experiencing a revival in the United States. This resurgence of interest in and use of unjust enrichment theory has led to increased application of restitutionary remedies. This Article proposes the restitutionary-based remedy of disgorgement of emoluments that constitute unjust gains. This cause of action and remedy already lie in American common law. Unjust enrichment provides a freestanding basis for disgorgement relief as well as restitution remedies to protect against fiduciary breaches and violations of other protected interests. Article III standing and other jurisdictional obstacles may pose a need for a cleaner, additional path. No existing statutes cover this field. Thus, I propose a statutory solution that operationalizes restitutionary disgorgement as the preferred remedy to undo unjust emoluments.