One problem for the litigants is that there is virtually no precedent on the scope and application of the emoluments clause, and scholars disagree on what sorts of arrangements would constitute a violation of the clause, and even whether it applies to the president at all. Historical practice provides some guide, but it’s not dispositive. There have been a handful of memos from the Office of Legal Counsel over the years, but they are not entirely consistent with one another. While we can reject some of the more expansive interpretations of the clause suggested by some commentators, real questions remain about which of the president’s extensive business relationships and interests could give rise to emolument clause violations and under what circumstances. (And even if the president is not violating the emoluments clause, there are still plenty of reasons to be concerned that his investments create other conflicts of interest, and that he should do more to extricate himself from such conflicts, but that’s a subject for another time. This post is focusing on the legal issues.)
CREW faces a bigger problem than trying to convince a federal court that Trump is violating the Constitution. It will first have convince the court that it is entitled to litigate this question at all. In order to maintain a suit in federal court, a plaintiff must show that the requirements of Article III standing are satisfied. In this case, CREW’s arguments for standing are a stretch. In short, CREW will have a hard time showing that it has suffered a cognizable injury from Trump’s alleged violation of the emoluments clause — an injury that is both actual or imminent as well as concrete and particularized to CREW — let alone that such injury was caused by Trump’s conduct and that it is redressable by a favorable court judgment.
The core of CREW’s argument for standing is that Trump’s violations of the emoluments clause have injured CREW because, as an organization dedicated to policing government ethics and misconduct, these violations give it more work to do and divert resources from other issues. From the complaint:
CREW brings this action to stop and prevent the violations of the Foreign Emoluments Clause that Defendant Donald J. Trump has committed and will commit, which have already injured—and, without a remediable order from this Court, will continue to injure—CREW in the form of a significant diversion and depletion of its time, resources, and efforts. CREW 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.” See also Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904-05 (2d Cir. 1993).
For those familiar with standing law, this may seem like an odd argument because, if it were accepted in such broad terms, it would make standing a non-issue for advocacy organizations of all stripes. Environmental organizations, for example, would be able to assert standing for any and all alleged violations of federal environmental laws on the grounds that such violations injure those groups by forcing them to divert resources to police those violations. Instead, as anyone remotely familiar with recent standing jurisprudence knows, environmental groups often have to go to significant lengths to demonstrate standing, lest they be thrown out of court, as has happened in cases such as Lujan v. Defenders of Wildlife and Summers v. Earth Island Institute. Similarly, if standing were as easy to establish as CREW suggests, we would have expected a different outcome in other cases, such as Clapper v. Amnesty International USA as well.
CREW’s standing claim is based upon the Havens Realty case cited above. In that case, the Supreme Court held that a local non-profit, Housing Opportunities Made Equal (HOME), had standing to challenge violations of the Fair Housing Act because such violations frustrated HOME’s purpose. Specifically, HOME operated counseling and referral services to help individuals find homes and advance the cause of increasing housing opportunity, and argued that unlawful housing discrimination made it more difficult and costly to perform those functions. CREW, on the other hand, alleges something quite different. Whereas HOME had to spend more resources because unlawful discrimination made it more difficult to find homes for those it served, CREW claims it has to spend more resources answering press inquiries, explaining the emoluments clause to policymakers and the public, and hiring an additional attorney so CREW may more effectively “counteract” Trump’s ethical and legal violations. In other words, CREW’s argument is that its injury is having to spend money to file this lawsuit and raise awareness about the issues it presents. HOME, in the court’s words, could allege injuries that were “far more than simply a setback to the organization’s abstract social interests.” CREW? Not so much.
Another important distinction between CREW v. Trump and Havens Realty is that the latter concerned a statute with provisions expressly authorizing private suits to enforce its requirements. With this provision, Congress made clear it wanted to do as much as possible to facilitate more stringent enforcement of the FHA’s terms through private litigation, a point Justice Brennan stressed in his opinion for the court. Yet, there is nothing in the emoluments clause nor in any federal legislation creating a cause of action to enforce the provisions terms, let alone the sort of “explicit cause of action” contained in the FHA. This matters because, as the court has stressed time and again, Congress may create procedural rights that ease the standing burden. Without such a statutorily created right, however, CREW’s burden becomes that much greater.
There are other differences between CREW v. Trump and Havens Realty. Josh Blackman identifies some here, such as the fact that HOME sought money damages — a form of relief that would clearly redress their alleged injury — whereas CREW does not. He also notes that Justice Ginsburg cited to Havens Realty quite a bit in Clapper — but that Ginsburg was also writing in dissent.
Perhaps aware of the standing problem facing this suit, CREW decided to file its action in New York, within the jurisdiction of the U.S. Court of Appeals for the 2nd Circuit, rather than in D.C. This is likely because in Ragin v. Harry Macklowe Real Estate Co., the 2nd Circuit adopted a somewhat more expansive interpretation of Havens Realty than have other circuits, including the U.S. Court of Appeals for the District of Columbia Circuit. Yet even Ragin does not go as far as CREW needs to sustain this suit, as the plaintiff organization there raised claims much closer to those of HOME in Havens Realty than CREW does here.
Standing is not the only jurisdictional obstacle to CREW’s suit, even if it is the most substantial. Another potential barrier is the Political Question doctrine, which further limits the power of the federal courts. I will address this doctrine, and explain how it might apply to CREW v. Trump, in a follow-up post.