Why CREW’s Foreign Emoluments Lawsuit Probably Won’t Succeed

A couple months back, before Donald Trump was formally inaugurated as President of the United States, I dismissed as a “pipe dream” the idea of successfully suing President Trump for violations of the U.S. Constitution’s Foreign Emoluments Clause—which prohibits any United States officeholder from accepting any “emolument” from a foreign state without the consent of Congress—due to the Trump Organization’s business dealings with foreign governments. Was my dismissive take premature? We may find out soon: Earlier this week, the Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit in the Southern District of New York raising this very claim, and asking the New York court to issue an order enjoining President Trump from continuing to violate the Clause.

I have a great deal of respect for CREW, and on the merits, I tend to think that Trump may well be in violation of the clause (though I don’t think it’s quite as obvious as the CREW brief and some other commentators have suggested, for reasons I might get into in a future post). But I continue to be skeptical that this suit has much chance of success, because I don’t think that the court will ever reach the merits of the claim. Rather, the case is likely to be dismissed before reaching the merits, for three reasons.

The first and most difficult hurdle that CREW faces in this case is the issue of standing. In the U.S. federal court system, in order to have standing to bring a lawsuit, the plaintiff must show that the case presents a “case or controversy” within the meaning of Article III of the U.S. Constitution. “Case or controversy” might seem sufficiently broad to describe CREW’s objections to Trump’s alleged constitutional violations, but U.S. courts have construed this requirement more stringently, limiting “cases or controversies,” as most relevant here, to cases where the plaintiff can show some concrete, particularlized injury—as distinct from an abstract or general interest in the government following the law. In contrast to some other legal systems, in the U.S. federal system an organization cannot establish standing simply by making a good-faith showing that the organization is specially interested in the subject matter of the suit. An environmental advocacy group, for example, doesn’t have standing, by virtue of the organization’s mission, to challenge allegedly illegal actions that will harm the environment. Rather, the environmental organization would have to bring the suit on behalf of some individual (such as one of the group’s members) who could show that she would be specially and particularly affected by the government action. (Full disclosure: I don’t particularly like this stingy standing doctrine, and I certainly don’t think it’s mandated by the U.S. Constitution. But that’s the doctrine we’ve got at the moment, and I’ll proceed on the assumption that it’s not likely to change.)

This standing requirement is a big, likely fatal, problem for the CREW lawsuit. The basis of the injury that CREW alleges it suffered, as described in the complaint, seems to be entirely built on the idea that CREW is an advocacy organization that cares about corruption and ethics, and Trump’s violations of the Emoluments clause have forced CREW to expend resources addressing the issue—for example, through efforts to educate the public about Trump’s violation of the Emoluments Clause, to do media interviews about these alleged violations, to do research about the Clause, to monitor and assess Trump’s violations of the clause, etc. But that can’t be enough to establish standing under current U.S. doctrine—if it were, then any organization with a bona fide interest in the subject area would be able to establish standing this way, and we know that U.S. courts, for better or worse, have rejected that view. CREW’s standing theory therefore “proves too much,” as the lawyers like to say. Consider, in perhaps the most absurd illustration of this problem, the fact that CREW’s complaint includes, as one of the “particularlized injuries” it has suffered, the claim that because of Trump’s violation of the Emoluments Clause, CREW’s attorneys “have researched and analyzed potential lawsuits that could be used to enforce the clause, drafted this complaint, and expended resources to file it,” diverting resources from other tasks. In other words, “We have standing to file this complaint because we filed this complaint.” They’ll be lucky if that standing theory doesn’t get them laughed out of court.

CREW’s only legal authority for the claim that the sorts of injuries it lists are sufficient to confer standing is a 1982 Supreme Court case called Havens Realty Corp. v. Coleman, which involved a nonprofit corporation that had used “testers” to uncover race discrimination in rental practices. (The organization would send two otherwise similar prospective renters, one black and one white, to the same apartment complex, to see if they are treated differently, and used the different treatment as evidence of illegal racial discrimination.) The nonprofit asserted that it had standing because, although it did not itself try to rent a property, its work involved providing “counseling and referral services” to prospective renters, and the defendant’s allegedly unlawful practices required the organization to expend more resources on these services. But as numerous commentators—including Josh Blackman, former Judge Michael McConnell, and my colleague Noah Feldman—have pointed out, Havens Realty is a weak reed. First, though Havens Realty has not been overruled, it predates a series of more recent cases in which the Supreme Court has made the standing requirement—and the “particularized injury” prong in particular—more difficult to satisfy. Second, Havens Realty is plausibly distinguishable from CREW’s lawsuit because the nonprofit in the former case apparently had to expend resources helping its clients who were directly harmed by the defendant’s illegal conduct: black people who couldn’t get apartments because they were discriminated against went to the nonprofit for help finding somewhere to live, and the more the defendant discriminated, the more turned-away renters the nonprofit would have to help. CREW doesn’t allege anything like that—its “resource expenditures” are all about research, analysis, education, talking to the media, and filing lawsuits (including the lawsuit at issue). It’s not clear whether that distinction would be consistent with what Justice Brennan, the author of the Havens Realty opinion, was thinking, but the relevant passage in that opinion is only two paragraphs long. Could a court read that paragraph aggressively, to find standing for CREW in this case, notwithstanding that doing so would effectively nullify limits on standing that the Supreme Court has been developing and aggressively enforcing over the past 25 years? Yes. Should a court do so? Maybe. Will it do so? That seems highly unlikely.

The second obstacle CREW faces is whether it has a “cause of action” to bring a suit alleging a violation of the Foreign Emoluments Clause. This question is often conflated with the standing question, but it’s distinct. The standing inquiry asks, “Has this plaintiff suffered an injury that’s sufficiently concrete and particular to establish that her claim counts as a ‘case or controversy’ under the Constitution?” The cause-of-action inquiry asks, “Does the law give this plaintiff the right to go to federal court to seek a judicial remedy for this injury?” Sometimes, there’s a statute that gives an injured plaintiff the right to seek redress for constitutional violations in federal court. For example, if a federal regulatory agency makes an allegedly unconstitutional rule, a statute called the Administrative Procedure Act expressly authorizes injured parties to seek judicial redress. There’s no such statute available in the CREW’s Emoluments Clause, though. For alleged constitutional violations, though, sometimes no statutory cause of action is required—the judicial authority to hear the plaintiff’s complaint and provide a remedy is sometimes deemed to be “implied” by the Constitution itself, at least when Congress has not taken any action to provide for alternative remedies. The U.S. Supreme Court has made it quite difficult to establish an implied constitutional cause of action for monetary damages. But CREW is not seeking damages; rather, CREW is seeking an injunction (that is, an order that the President cease from engaging in unlawful conduct). That’s good news for CREW.

But there are still two problems on the cause of action question: First, although the case law seems to suggest that plaintiffs have an implied cause of action to enjoin constitutional violations, most of the cases on this point involve a situation in which it is the plaintiff’s constitutional right that has been violated, and where the injunction sought would prevent further violations of the plaintiff’s own constitutional rights. There’s much less guidance in the existing cases about whether there’s an implied constitutional cause of action for an injunction when the plaintiff’s injury (the injury that confers standing) is not actually an injury to an individual constitutional right. Here, CREW might be able to point to some recent separation-of-powers decisions that do suggest an implied right to challenge an unconstitutional government structure. These cases, though, could be framed as involving an individual right not to be subjected to coercive authority of an unconstitutional body; it’s hard to make an analogous argument for CREW’s injuries vis-à-vis the Emoluments Clause. Second, even if CREW gets past that first hurdle and convinces the court that there’s an implied right to injunctive relief for all constitutional violations, that implied right can be limited if Congress has, by statute, supplied an alternative regulatory scheme—even if that alternative doesn’t provide the same access to judicial remedies. Here, CREW will have to contend with the argument that Congress’s statutes on conflict of interest—which explicitly exempt the President—eliminate any implied cause of action for violation of the Emoluments Clause.

There’s yet a third obstacle that CREW will need to overcome before a court would consider the merits of its constitutional arguments: Even if the court decides CREW has standing and a cause of action, the court might still invoke a principle called the “political question doctrine” to avoid hearing the case. The political question doctrine is a much-discussed but rarely-used principle according to which a court can decline to rule on an alleged constitutional violation on the grounds that certain “political questions” cannot be effectively addressed by courts. In this case, the precise nature of the injunction CREW is requesting is not entirely clear—the complaint says only that the court should “enjoin[] Defendant from violating the Foreign Emoluments Clause”—but presumably they are seeking an order that Trump divest himself from his business holdings, or to restructure those businesses so that they avoid problematic foreign entanglements. A court is likely to be very reluctant to try to manage the fraught issue of alleged presidential conflicts of interest via injunctions of this sort. Whether or not the court formally invokes the political question doctrine depends on whether the court figures out a way to dismiss the suit on one of the two other grounds noted above (lack of standing and/or no cause of action). I think it probably would, and so reliance on the political question doctrine as such would be unnecessary. But should the court find itself unwilling or unable to dismiss the suit on either of the above grounds, it could always invoke “political question” as a way to avoid entangling itself in this conflict with the President.

In sum, I don’t think this lawsuit will succeed, much as I would like it to. Indeed, the problems seem so serious that I’m not sure it was tactically wise to bring the suit in the first place. But that’s a question for a future post.

4 thoughts on “Why CREW’s Foreign Emoluments Lawsuit Probably Won’t Succeed

    • Yes, I know. I’m a bit surprised that CREW didn’t try to do the same thing before charging ahead and filing its suit. A competitor hotel would perhaps have a stronger standing argument, but would still face an uphill battle, as the hotel would likely have to show that an order enjoining Trump from violating the Emoluments Clause would lead those foreign diplomats to book in the plaintiff hotel instead. (That said, that standing limitation is awfully squishy, and courts that want to hear a case can manipulate the injury to find a way around it. For example, when white students challenge affirmative action in college admissions, the Court has been willing to find “deprivation of a right to compete on an equal basis” enough, despite the fact that the student can’t show that she would have been admitted if the affirmative action program were eliminated. The doctrine here is anything but consistent, and in fact seems highly politicized.) Moreover, the cause of action and political question problems remain. But, yes, I think the ACLU’s approach makes more sense. The lawsuits aren’t mutually exclusive, but I do wonder whether CREW (whose brief makes so much of the diversion of their resources from their other tasks) may have done themselves a disservice by rushing to file this suit without at least making an effort to come up with a sounder basis for standing first.

      • Do you think a business that is adjacent to a Trump property could satisfy the standing issue if, for example, traffic snarls caused by visiting foreign dignitaries staying in the Trump hotel decreased the volume of its customers? Or would one have to show that the foreign dignitary wouldn’t stay in the Trump property if Trump weren’t the President? If the current case does get tossed out on the standing issue, wouldn’t other plaintiffs be able to make alternative standing claims? Would it be possible for the current court to say 1) no standing AND 2) no cause of action AND 3) it’s a political question, or would the court’s answers to issues two and three necessarily be dicta and non-binding on future courts facing other plaintiffs with other theories about standing?

  1. Pingback: The Right to Withhold Consent: Legislator Standing and the Emoluments Clause – Modern Democracy

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