Why CREW's emoluments clause lawsuit against President Trump still has standing problems

President Trump (Kevin Lamarque/Reuters)

On Jan. 23, Citizens for Responsibility and Ethics in Washington (CREW), a progressive government watchdog organization, filed suit against President Trump alleging that he was violating the Constitution's foreign emoluments clause.

At the time, I expressed skepticism about the suit, not least because I doubted that CREW could establish standing. How, after all, could this organization claim an Article III injury from Trump's alleged acceptance of prohibited emoluments? (I say alleged because I think there is some question about whether he has violated the clause.)

This week, CREW announced additional plaintiffs had joined the suit, bolstering its claim for standing. As detailed in the amended complaint, CREW has been joined by an association of restaurants and restaurant workers and an individual who books events at hotels that compete with Trump-branded properties. These additions will certainly help CREW make the case for standing, but is it enough? I'm not so sure. As I see it, serious standing problems remain, and there is also the possibility that courts will conclude the emoluments clause claims raise nonjusticiable Political Questions.

First to standing. For Article III standing, a plaintiff must show that he or she has suffered an injury-in-fact that is both concrete and particularized to the plaintiff, as well as actual or imminent. In addition, the injury must be fairly traceable to the allegedly unlawful action and it must be likely (and not merely speculative) that the injury will be redressed by a favorable decision.

The addition of the new plaintiffs helps satisfy the injury prong because the new plaintiffs may argue that they suffer from unfair competition from Trump-owned properties. Courts often recognize such competitive injury as sufficient for standing, so the CREW suit is unquestionably in better shape now than it was before. (Note that the competitive injury claim helps with regard to those alleged emoluments involving Trump hotels and other properties in competition with the plaintiffs, but may not help with regard to some other aspects of the CREW complaint concerning other alleged emoluments. Standing is required for each claim.)

Establishing a cognizable injury is essential, but it is not enough. The plaintiffs must also show that this injury is fairly traceable to the allegedly unlawful conduct—in this case, Trump's receipt of the emoluments—and that the injury is redressable.

On causation, I have little doubt that it may be difficult to compete with a Trump-branded property, at least for certain types of business. There is ample reason to believe that at least some foreign dignitaries are more likely to patronize Trump properties than they were before and that this may come at the expense of the plaintiffs. But that's not enough. The question is not merely whether some foreign officials are more likely to stay at the Trump hotel, but whether or not they are more likely to stay at the hotel because this will result in Trump's receipt of an emolument, as opposed to a generalized desire to do things that may curry favor with the president and his administration.

There's a similar problem with regard to redressability. Were a court to prohibit Trump from receiving any emoluments from his hotels' business, would this discourage foreign dignitaries from staying there? And, more importantly, would such dignitaries now be more likely to patronize the plaintiffs' businesses? Perhaps, but perhaps not. The claim is speculative and relies upon assumptions about how third parties will or will not respond to a favorable court decision. In particular, it assumes that the reason foreign governments are patronizing Trump's establishments is that they enrich Trump through the allegedly unlawful emoluments he receives, and not for other reasons—reasons that may equally unseemly (i.e. we think Trump will like us because we use something with his name on it) but are not constitutionally prohibited.

In most cases in which plaintiffs allege a competitive injury in order to establish standing, redressability is less of a concern because a successful suit would prohibit the competition. In Sherley v. Sebelius, for instance, the plaintiffs alleged that new NIH guidelines would increase competition for research grants by expanding the pool of eligible projects. The increased competition was the source of their injury, but their legal claim was that the decision to allow such competition was itself unlawful. Were they to prevail, the guidelines would be thrown out and the increased competition would be eliminated.

In CREW's case, however, it's not the competition with a Trump-branded property that is unlawful, but the president's profiting from it. An injunction against the receipt of unlawful emoluments would cure the legal wrong but would not necessarily eliminate (or even reduce) the competition that causes the injury. either. Foreign dignitaries may wish to patronize Trump's hotel even if they know Trump himself doesn't profit, and if they opted to go somewhere else, there's no reason to think they'd suddenly send their business to those suing the president. Any such claims are fairly speculative.

The underlying point is that there are many reasons it may be "unfair" to have to compete with a hotel bearing the president's name, but the only unlawful action complained of is the president's receipt of the emolument. If that, in particular, is not the cause of the injury and is not likely to be redressed by a favorable court judgment, there is a potential standing problem under Article III.

As Andrew Hessick notes, it may be possible to get around this obstacle by alleging that there is at least some probability that prohibiting Trump from receiving unlawful emoluments will reduce the degree of competition, but courts are generally skeptical of such arguments absent a statutorily granted procedural right (as in Massachusetts v. EPA or most NEPA cases), and CREW can claim no such procedural right here.

For these reasons, I believe that CREW has helped its standing claim but that serious obstacles remain. It's possible that discovery could help, but the real test will come before then—when the Trump administration files its motions to dismiss.

Standing is not the only justiciability obstacle facing CREW's suit. Another is the Political Question doctrine, under which certain constitutional questions are deemed nonjusticiable as unfit for resolution by the courts. Under this doctrine, what makes a case unduly "political" is not its relation to partisan politics, but rather a judgment that it is the sort of question that can be resolved only through the political process, such as whether a judge has committed an impeachable offense and the Senate has conducted a proper trial to hear such claims. In the words of Marbury v. Madison, such cases are "political" in that they "respect the nation, not individual rights," and, as a consequence, are entrusted to the political process. So one could argue (and I expect the Trump administration will argue) that whether the president is abiding by the emoluments clause is just the sort of matter that respects the nation as a whole and is not fit for judicial review.

Under current doctrine, one basis (indeed, the most common basis) for concluding that a case presents a nonjusticiable Political Question is "a textually demonstrable constitutional commitment of the issue to a coordinate political department." Is there such a textual commitment here? Under the foreign emoluments clause, which is the primary (but not exclusive) focus of the suit, "no Person holding any Office of Profit or Trust under them" may accept an emolument from a foreign state "without the Consent of the Congress." (The domestic emoluments clause, a.k.a. the compensation clause, contains no such provision.) This would seem to suggest that it is up to Congress to determine what the president may, or may not, accept. But that's not all.

The underlying concern of the foreign emoluments clause is corruption. The authors of the clause were concerned that the receipt of gifts and other things of value could create a conflict of interest and compromise the president's ability to perform his constitutional obligations. And what was their remedy for this? Impeachment and removal.

Article II, section 4 expressly provides for impeachment and removal for precisely the sorts of bad acts the emoluments clause is designed to limit: "Treason, Bribery, or other high Crimes and Misdemeanors." As a consequence, I believe there is a serious argument that the Constitution anticipates that the impeachment process, and not a suit in an Article III court, is the proper means of enforcing the emoluments clause. And just as courts have concluded that suits over how impeachment proceedings are conducted are nonjusticiable, I would not be surprised were a court to reach the same conclusion here. I would also not be surprised were courts to become even more sympathetic to this argument (or the standing arguments) when forced to consider the sorts of injunctive relief they might otherwise be asked to provide, such as orders mandating all sorts of disclosures and actions by a sitting president. The demands on courts here are far greater than in tort suits over alleged fraud at Trump University.

While I remain skeptical that CREW has solved the standing problem in its emoluments clause lawsuit, I believe the concerns this lawsuit raises are legitimate. Whether or not President Trump is violating one or both of the emoluments clauses, and whether or not such claims are justiciable, I share CREW's concerns about the potential conflicts of interest presented by the president's business holdings and his steadfast refusal to take such concerns seriously. These are matters worthy of examination and serious congressional oversight (not that I'm holding my breath for the latter). Thus I won't be too disappointed if courts reject my analysis and allow CREW's lawsuit to succeed, especially if it forces the president to release his tax returns (as he should have long ago). And so I wish the plaintiffs luck, even if I'm not convinced they deserve to win their case.