A Standing Hurdle in the Emoluments Clause Suit against President Trump

Ethan Simon

simonLess than a week after President Donald J. Trump took the oath of office, a public interest group brought suit against him in federal court. In Citizens for Responsibility and Ethics in Washington v. Trump, No. 17-458 (S.D.N.Y. Jan. 23, 2017), Plaintiff “CREW,” a nonprofit, nonpartisan corporation committed to “reducing the influence of money in politics,” alleged that President Trump’s business ties create conflicts of interest that violate the Foreign Emoluments Clause of the Constitution.

President Trump’s business dealings have been the subject of intense debate since he announced his candidacy for President in June 2015. Some have questioned how President Trump can oversee and implement policy when many decisions central to that policy could directly impact—or be impacted by—his financial interests. CREW is one organization concerned with conflicts of interest that could arise as a result of the President’s role in foreign relations.  In its lawsuit, CREW seeks declaratory and injunctive relief against any current and future violations of the Foreign Emoluments Clause.

The Foreign Emoluments Clause, Article I, Section 9, Clause 8 of the Constitution, provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” But while CREW alleges that President Trump’s business interests present an issue under the Foreign Emoluments Clause, CREW may never have an opportunity to litigate the merits of that contention in court.

It is fundamental that a plaintiff must have “standing” to sue the defendant. In other words, the plaintiff must have been injured by the defendant’s conduct or otherwise have a sufficient personal stake in the outcome of the controversy to warrant the court’s intervention. If the plaintiff cannot make this showing, it cannot maintain its lawsuit. The issue of standing is complicated and litigated often, and it becomes even more complicated when an organization, like CREW, brings suit presumably on behalf of individuals who are harmed by the offending conduct. In many such cases, courts find that there is no “organizational standing.”

Here, by the mere mention of standing in the introductory paragraphs of its complaint, CREW acknowledges that it has a standing problem. CREW contends that it “has standing under Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), because there has been a ‘concrete and demonstrable injury to the organization’s activities[,] with the consequent drain on the organization’s resources.’” In support of that assertion, CREW alleges that it has been injured by President Trump’s actions “in the form of a significant diversion and depletion of its time, resources, and efforts.” Even if those allegations are true, they may not be adequate to support standing.

In Coleman, the United States Supreme Court addressed standing in the context of a Fair Housing Act case, where the plaintiffs alleged that the owner of two apartment complexes engaged in racial steering. The plaintiff, Housing Opportunities Made Equal (HOME), whose purpose was “to make equal opportunity in housing a reality in the Richmond Metropolitan Area,” alleged that:

Plaintiff HOME has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the defendant’s [sic] racially discriminatory steering practices.

Id. at 363, 379. Justice Brennan, delivering the opinion of the Court, held that “[i]f, as broadly alleged, [the defendants’] steering practices have perceptibly impaired HOME’s ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact.” Id. at 379. The Court held further that “[s]uch concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests.” Id. Declining to decide whether HOME had standing in Coleman, the Supreme Court remanded the matter, noting that “HOME will have to demonstrate at trial that it has indeed suffered impairment in its role of facilitating open housing before it will be entitled to judicial relief.” Id. n.21.

In light of Coleman, CREW will face an uphill battle if President Trump moves to dismiss the complaint on the basis of standing, which he undoubtedly will do. In Coleman, HOME described some of its routine activities and explained how the defendants’ conduct forced HOME to divert resources from those routine activities. CREW’s complaint fails to provide this type of detail and CREW may be unable to demonstrate how President Trump’s conduct has frustrated its day-to-day activities. Indeed, CREW seeks to effect change through litigation. On the homepage of its website, CREW states that it “uses aggressive legal action, in-depth research, and bold communications to reduce the influence of money in politics and help foster a government that is ethical and accountable.” http://www.citizensforethics.org (emphasis added); see also http://www.citizensforethics.org/who-we-are (“CREW uses high-impact legal actions to target government officials who sacrifice the common good to special interests.”) (emphasis added). Arguably, President Trump cannot have impaired CREW’s ability to carry out its organizational activities because, in response to President Trump’s conduct, CREW has simply filed another lawsuit, which is what it does on a regular basis anyway. In other words, and in contrast to HOME’s allegations in Coleman, CREW may not have to divert any resources from its typical operations.

Accordingly, and notwithstanding the merits of CREW’s claims under the Foreign Emoluments Clause, CREW’s lawsuit may be short-lived. But if its case is dismissed on the basis of standing, nothing will prevent another plaintiff from bringing similar claims. An entity or individual may later be able to show that President Trump, in connection with receiving a benefit from a foreign state, made a decision that adversely impacted him or her. Right now, however, such a suit may be premature.

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