The Volokh Conspiracy

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Second Circuit Refuses to Take Emoluments Case En Banc

At least four judges (and one senior judge) believe the standing question is worthy of en banc review. Will the Supreme Court think it's worth certiorari?


The U.S. Court of Appeals for the Second Circuit denied a petition for rehearing en banc in CREW v. Trump, one of three ongoing suits alleging that President Donald Trump is violating the Constitution's foreign emoluments clause.

Judges Cabranes and Menashi each wrote opinions dissenting from the denial, the latter joined by Judges Livingson and Sullivan. Senior Judge Walker, who was not eligible to participate in the vote, published a "statement with respect to the denial of rehearing en banc," explaining why he thinks the case is en banc worthy. Judge Leval also filed an opinion, defending the court's decision not to grant en banc review. Judge Park did not participate. So of the twelve judges participating, at least four supported en banc rehearing. (We are not entirely sure of the number, as the court does not release the vote tally.)

The Second Circuit's decision is not too surprising, even if only because the court is notoriously stingy about granting en banc review. That said, I think this case certainly staisfies the "question of exceptional importance" threshold, as Judge Cabranes argued in his opinion. I also agree with Judge Menashi that the three-judge panel's decision that the CREW plainiffs have standing was incorrect, for reasons I detailed these three posts. As Judge Menashi notes, the panel opinion adopted a particularly loose approach to competitor standing, but apparently a majority of his colleagues did not agree.

I suspect that the Trump Administration will file a petition for certiorari. There are three emoluments cases potentially ready for Supreme Court review, and I would think the Court would take at least one of them. Then again, depending on the outcome of the election, the cases could be moot before the Supreme Court has the opportunity to decide one.