Overlawyered: Chronicling The High Cost Of Our Legal System

Emoluments Clause suit likely to run aground on standing

A fresh-outta-the-gate lawsuit asks the courts to step in to prevent President Donald Trump from violating the Constitution’s Emoluments Clause through his business dealings. So, Josh Blackman asks, what’s its argument for standing under Article III? Basically, it’s that “because CREW is spending time on Trump’s emolument issue, they are not able to do things they would otherwise do.” That’s remarkably weak, even under what’s left of such liberal precedents as Havens Realty Corp. v. Coleman (1982), and unlikely to persuade the courts. The ACLU is biding its time while preparing a stronger eventual case for standing by looking for a hotel or other competitor that can plausibly claim to have lost business because of transactions involving the Trump Organization and foreign states that (it expects to argue) violate the clause. Even if litigants succeed in obtaining standing in some case, they will still face a daunting barrier in the state of the doctrine on justiciability and political questions, which could lead the courts to step back and defer to Congress as the appropriate branch to devise a remedy. Earlier here.

More: Jonathan Adler on Twitter comes to similar conclusions about standing — “It’s as if complaint is just a PR exercise” — and notes that Prof. Erwin Chemerinsky, who backs the new suit, argued earlier that Texas and other states, for lack of injury, had no standing to challenge the Obama administration’s DAPA immigration action. “If no standing because Texas had ‘choice’ not to issue drivers licenses, CREW has a choice not to worry about emoluments.” And from Derek Muller:

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6 Comments

  • See this 1/23 link for the updated posting “CREW Sues Trump Over Emoluments” (including link to the lawsuit document) http://www.citizensforethics.org/press-release/17451/

    The 12/16 document “The Emoluments Clause: Its Text, Meaning, And Application to Donald J. Trump” by Eisen, Painter, and Tribe is at
    http://www.commoncause.org/democracy-wire/trump-conflicts-of-interest-may-violate-emoluments-clause.html
    In the comments section, there are 4 videos describing the Emoluments Clause and other materials.

  • Every United States citizen should have standing in a lawsuit concerning the emoluments clause because it is for the benefit of all United States citizens. Their rights are in jeopardy if any “Person holding any Office of Profit or Trust” under the United States receives an emolument because the “Person” has some allegiance or obligation to the “King, Prince. or foreign State” who gives the emolument. The “Person” should have UNDIVIDED allegiance and obligation to the citizens of the United States.

    • How would you distinguish this from the cases of every taxpayer has a right to keep his tax dollars from being used to fight an unjust war, or support Planned Parenthood? In these cases the fungibility of tax dollars creates an even stronger argument of damages.

    • No, what you describe is the absence of standing. It has been the law since the founding of our nation that in order to have standing in court, a plaintiffs needs to show that he has suffered a cognizable injury that is both concrete and particularized to that individual. The citizenry at large suffering an injury, rather than an individual, is the exact opposite of what you propose; it means no one has standing to bring a lawsuit.

      This rule exists for a very good reason: courts exist to resolve particular disputes between individuals for specific harm suffered. Matters that affect the citizenry as a whole are meant to be resolved at the ballot box, not in the courts.

  • CREW’s argument: Virtue signaling = standing.

    • By Wfjag

  • There are three other problems:

    (1) Political question.
    (2) Justiciability (i.e., what would be the remedy?).
    (3) Merits–payments to a separate legal entity, not Trump himself, don’t violate the Clause.

    • By SPO