The headline issue in the first lawsuit against President Donald Trump is whether it is a violation of the emoluments clause of the Constitution for his hotels and properties to be paid by foreign governments. But if a court actually decides this tough question, that will already be an accomplishment for the watchdog organization that brought the suit and the distinguished lawyers and academics representing it.
First, they have to get past two legal hurdles just to have their arguments considered. Although they have strong arguments to make on both, a skeptical court could easily throw out the case before reaching its heart.
To be clear up front, I still think that the constitutional requirement that the president not accept “any present [or] emolument … of any kind” from a foreign power includes payment for goods and services. The word “emolument” derives from the Latin emolumentum, and it pretty clearly included and includes profit and compensation, not just a free gift. So Trump’s lawyers are I think constitutionally incorrect to claim that there’s no “emolument” if foreign governments are paying fair market value for hotel rooms or a lease.
Yet being right about the constitutional issue doesn’t guarantee that Citizens for Ethics and Responsibility in Washington will win its lawsuit. Federal courts don’t just automatically consider every claim that a government official — even the president — is violating the Constitution.
Before a federal court will hear any case at all, the plaintiffs have to show that they have what constitutional tradition calls “standing” to sue. Standing doctrine derives from the section of the Constitution that says the federal judiciary is empowered to hear “cases and controversies.” The Supreme Court reads this to mean that a plaintiff must have suffered a concrete and particular injury. If your concerns are too general or abstract or could be shared by just about anyone, you don’t have standing.
If a hotel in Washington could show that a foreign delegation was scheduled to stay in its rooms but broke the reservation to stay in one of Trump’s hotels instead, perhaps the hotel could argue that it was concretely injured by the president’s violation of the emoluments clause. I stress “perhaps,” because the harm would still be speculative, and the justices have in recent years been especially skeptical of speculative harm as a basis for standing.
But standing poses a still greater hurdle for CREW, which describes itself as a nonprofit organization made up “of a small but nimble group of lawyers, researchers, and communicators” that highlights “the negative impact of money in politics” and takes “direct action to ensure accountability for those who abuse the political system.”
CREW’s legal team, which includes two former White House ethics lawyers and three well-known legal scholars, addresses this issue of standing by citing a 1982 precedent called Havens Realty Corp. v. Coleman.
The Supreme Court, in an opinion by Justice William Brennan, held that a nonprofit organization called HOME, whose purpose was “to make equal opportunity in housing a reality” in Richmond, Virginia, had constitutional standing to sue a realty company that was steering black renters away from certain neighborhoods.
The racial steering, Brennan wrote, “perceptibly impaired HOME’s ability to provide counseling and referral services for low- and moderate-income homeseekers.” As a result, he said, the organization had suffered a “concrete and demonstrable injury … with the consequent drain on the organization’s resources,” This was, Brennan concluded, “far more than simply a setback to the organization’s abstract social interests.”
CREW says that focusing on Trump’s emoluments clause violation is causing “a significant diversion and depletion of its time, resources, and efforts.” That, it asserts, puts it in the same position as the housing nonprofit in the 1982 case.
The Havens decision has never been overturned. But Brennan’s view of standing was more capacious than that of the present justices, including most of the current liberals. One conservative legal expert, former judge and now professor, Michael McConnell (who clerked for Brennan), told CNN that the idea of applying it was “silly.”
Assuming a lower court would still treat the Havens precedent as law, it’s possible that it might distinguish CREW, which is a broadly focused corruption watchdog, from the housing nonprofit, which was fully devoted to establishing racially fair access to housing, and was therefore injured when it couldn’t get blacks into certain apartments.
If CREW has standing, however, it still must show separately that it has a right to sue under the emoluments clause.
The technical way to do this is to assert what is called an “implied cause of action,” which means that a court will assume that it can entertain a suit to order a government official comply with the Constitution.
The law in this area is complicated. In general, the courts assume you can sue to order constitutional compliance by a government official unless Congress has said you can’t. Congress hasn’t specifically prohibited an emoluments clause suit, but it has passed various ethics laws. If a court wanted to avoid the case, it could hold that those ethics laws are the only way to get into court.
However, the court’s conservatives, in a 2012 dissent by Chief Justice John Roberts, have expressed a desire to limit such suits to situations where the plaintiff’s own constitutional rights would be violated. And CREW’s specific constitutional rights aren’t protected by the emoluments clause.
There’s no case saying expressly that you can automatically sue for enforcement of constitutional rights that aren’t yours. In that sense, a court hearing CREW’s case could make new law.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer or Bloomberg LP and its owners.