Foreign emoluments lawsuit presents standing questions

Congress' ability to turn to the federal courts to vindicate its constitutional authority inevitably raises the question of standing. Congressional plaintiffs, whether they be individual members, the houses of Congress, or legislative committees, must meet the "case or controversy" (Article III, Section 2) standing requirement. Unless a claim strictly fits within the bounds of Article III, a federal court lacks the jurisdiction to act.

In practice, standing is often the first procedural hurdle that congressional plaintiffs, as well as other plaintiffs, must clear in order to be able to proceed with a federal lawsuit. Failure to demonstrate standing is fatal to having the dispute considered on the merits.

The U.S. Supreme Court imposes three requirements to support standing. First, the plaintiff must allege a personal injury that is particularized, concrete, and otherwise judicially cognizable. Second, the injury must be fairly traceable to the defendant's allegedly unlawful conduct. Finally, the alleged injury must be redressible by a favorable decision.

Blumenthal et al. v. Trump, 1:17-cv-01154 (D.C. Cir.), presents the jurisdictional question of whether Sen. Richard Blumenthal and some 200 members of Congress have standing to sue President Donald Trump for violating the foreign emoluments clause of the Constitution (Article I, Section 9, Clause 8). On Aug. 15, the U.S. Department of Justice filed a notice of supplemental authority on standing. It represents the president and objects to the plaintiffs' standing.

The foreign emoluments clause establishes a constitutional "guard rail" in the form of a legal process whereby the president must notify and secure the consent of Congress before accepting an emolument "of any kind." The problem is that Trump has never sought the consent from Congress for the benefits his businesses have and continue to receive from numerous foreign governments. He has not sold his interests, or put them in a blind trust. As a result, the congressional plaintiffs allege they have been denied their constitutional prerogative to authorize or reject those emoluments, which is a word from a bygone era meaning profits, gains or advantages.

In 1997, the Supreme Court decided Raines v. Byrd, 521 U.S. 811, which presented a constitutional challenge to the Line Item Veto Act giving the president the authority to cancel certain spending and tax measures after being signed into law. The court recognized that members of Congress may have standing against the executive if the plaintiffs allege either (1) a personal injury or (2) an institutional injury that is not "abstract and widely dispersed."

In Raines, the court recognized that the plaintiffs had an interest in maintaining the effectiveness of their votes, but this interest was not sufficient to give them standing. The plaintiffs did not satisfy the personal injury requirement, because their votes were not "nullified." Rather, their votes were given full effect when the plaintiffs voted against the act. Thus, the plaintiffs simply lost the vote. The Raines court questioned whether the claimed injury was traceable to the unlawful conduct of the executive branch as their real complaint was against "the actions of their own colleagues in Congress in passing the act." The court also noted that "some importance" must be given to the fact that both Houses of Congress opposed the suit, and that its refusal to grant standing did not foreclose a constitutional challenge by someone suffering a judicially cognizable injury.

The most recent Supreme Court case on legislative standing is Arizona State Legislature v. Arizona Independent Redistricting Committee, 135 S. Ct. 2652 (2015). The court held that the Arizona legislature had standing to challenge a state constitutional amendment that transferred legislative power for congressional redistricting from the legislature to an independent redistricting commission. The amendment, which was adopted by ballot initiative, addressed the problem of gerrymandering. The wholesale transfer of power from the legislature to the commission constituted a judicially recognizable "institutional injury" to support standing. The court held that Arizona voters, however, had the power to remove the redistricting authority from the legislature. Thus, the commission prevailed on the merits.

For the Blumenthal plaintiffs to have standing, they must assert either a personal injury or an institutional injury. Arguably, the president's failure to notify and obtain consent from Congress constitutes both an individual and institutional injury, and one traceable to the unlawful conduct of the president. The requested declaratory and injunctive relief satisfies the redressability requirement.

The president's failure "nullifies" the personal right to vote or "consent," as provided for by the foreign emoluments clause. This deprivation, which is similar to the legislature's loss in Arizona, should be considered a sufficient individual or personal injury to establish standing. The plaintiffs obviously cannot vote on emoluments they do not know about or have not been asked to consider. Extinguishing the right to vote by failing to submit is distinguishable from allowing a vote and then losing it, which was the focus in Raines.

The loss of voting power also constitutes an institutional injury in that it effectively transfers power from Congress to the president. Failing to request consent deprives Congress as a body of voting power, and thus resembles the standing recognized by the court in Arizona. Congress is left without a meaningful legislative remedy, because any legislation on the subject would be subject to a presidential veto. Moreover, the constitutional balance found in the foreign emoluments clause is upset by shifting the obligation to initiate the process from the president to Congress. Giving the president the power to avoid the constitutional obligation to seek consent is not merely an abstract dilution of institutional power, but rather a wholesale impermissible transfer of power. It arguably falls squarely within the court's reasoning in Arizona.

The plaintiffs in Blumenthal should be granted standing to have their claim heard by the judiciary. Otherwise, the anticorruption protections contained in emoluments clause are effectively written out of the Constitution.