Notice & Comment

Standing and the Emoluments Clause

Today, a group of constitutional law scholars apparently plan to file a federal lawsuit alleging that President Trump is violating the Emoluments Clause because his hotels are receiving payments from foreign governments.   Although the meaning of the clause is up in the air, roughly speaking the clause prohibits federal officials from taking payments from foreign countries.

This suit won’t be the suit that resolves the meaning of the clause. As others have noted, these plaintiffs pretty clearly lack Article III standing. The Supreme Court has recently reaffirmed that, to have standing to bring suit in federal court, an individual cannot allege simply a violation of the law; instead, he must allege that the violation caused him to suffer an “injury in fact.” The plaintiffs claim that Trump’s actions have injured them by forcing them to research the legality of Trump’s actions and respond to questions from the media about those actions.

That type of injury is almost certainly not enough. Valley Forge tells us that annoyance at government violations of the law—as well as the costs incurred to deal with that annoyance, like filing a lawsuit—is not enough of an injury to support standing. It also seems unlikely that having to respond to the media’s questions provide a basis for standing. Trump didn’t cause the media to ask those questions; the media chose to ask those questions. In the standing jargon, the questions aren’t traceable to Trump’s actions.

There are some cases that suggest that the violation of an individual right alone can confer standing. But the Emoluments Clause doesn’t confer an individual right. It creates a prohibition on federal officers that everyone in society collectively shares. So the plaintiffs lack standing—although I disagree with the suggestions of some that the plaintiffs should be sanctioned. Their suit is hardly frivolous given that a number of justices, including some currently sitting, have suggested that they might extend standing to suits of this sort.

So who would have standing? One answer is an individual who was hurt because of the foreign payments—for example, a competitor hotel chain that lost business. The federal government would also probably have standing. Unlike individuals, the federal government has broad standing to vindicate collective rights. That is why the government has standing to bring criminal prosecutions. That broad standing extends even to suits in which the federal government is suing itself. United States v. Nixon says that a branch of the federal government can sue itself, so long as the dispute is adequately concrete. But it is obviously unlikely that the administration will bring suit against President Trump.

A third, more interesting, possibility is the states. Like the federal government, states represent society, and they accordingly should have broader access to the courts to enforce societal rights. The Court suggested as much in Massachusetts v. EPA, where it said that states are “entitled special solicitude” in the standing analysis when they assert quasi-sovereign interests. One might argue that the states should have broad standing only to enforce their state laws as opposed to the Constitution. But the Constitution is part of the laws of the states—the Supremacy Clause says so—and officers of the states must take the oath to uphold the Constitution. And it’s certainly not clear that the federal government should have a monopoly on enforcing the Constitution, especially in suits against the federal government.


Print Friendly, PDF & Email