Congressional Members Lack Standing to Sue for Violation of Emoluments Clause         

  On February 7, 2020, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court's decision that twenty-nine Senators and 186 Member of the House of Representatives have Article III standing to maintain a suit seeking declaratory and injunctive relief against the President regarding his alleged violation of the Emoluments Clause the Constitution of the United States.  The Emoluments Clause prohibits any officer of the Government from accepting “any present, Emolument, Office, or Title, of any kind whatever” with the “Consent of Congress.”  U.S. CONST. art. I, § 9, cl. 8.  Applying the three-part test under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), the district court held that the Members suffered an injury based on “[t]he President … depriving [them] of the opportunity to give or withhold their consent [to foreign emoluments], thereby injuring them in their roles as members of Congress.”  Slip Op. 9.

               After the district court denied the President's motion to certify the question of standing to the court of appeals, the President filed a petition for a writ of mandamus, which was denied without prejudice by the D.C. Circuit but the court remanded the case “for immediate reconsideration of the motion to certify.”  Slip Op. 6.  On reconsideration, the district court certified for interlocutory review the standing and other issues decided against the President to the court of appeals.  The D.C. Circuit granted interlocutory appeal.

               The court reviewed the district court's dismissal orders de novo and reversed, relying on Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953-54 (2019) and Raines v. Byrd, 521 U.S. 811 (1997).  These decisions hold that individual members of Congress “lack standing to assert institutional interests of the legislature.”  The court of appeals noted that the fact that large numbers Senators and Representatives joined in the suit would be treated no differently than if only one legislator filed the suit.  The court stated that the Article III analysis is “especially rigorous” where reaching the merits of the dispute that would force it to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.  Slip Op. at 10 (quoting Raines) and (citing Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2665 n.12 (2015)). 

Because Raines and Bethune-Hill control this case, we begin and end our analysis with them.

               The Members can, and likely will, continue to sue their weighty voices to make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit.  But we will not—indeed cannot—participate in this debate.  The Constitution permits the Judiciary to speak only in the context of an Article III case or controversy and this lawsuit presents neither.

Slip Op. 11.

               The D.C. Circuit noted two other cases brought by different defendants seeking declaratory and injunctive relief for alleged violations by the President of the Emoluments Clause.  Citizens for Responsibility & Ethics in Washington v. Trump, 939 F.3d 131 (2d Cir. 2019) and In re Trump, 928 F.3d 360, 365 (4th Cir. 2019).  In Citizens for Responsibility and Ethics, the Second Circuit reversed and remanded a decision of the district court for the Southern District of New York.  The Second Circuit held that plaintiffs who are  owners of restaurants and hotels and employees of restaurants lacked standing to seek declaratory and injunctive relief against President Trump for violation of the Emoluments Clause.  The court of appeals found that plaintiffs alleged a “competitive injury” as a result of the President adopting policies and practices that incentivized foreign and domestic government officials to patronize restaurant, hotel, and event-space properties operated by the President's businesses.  The court also found that the allegations supported the causation element of Article III standing as well as the redressability standing requirement.  Plaintiffs seek an order restraining the President from such activities and the release of financial information confirming that he is not involved in activities that violate the Emoluments Clause.  The Second Circuit also held that the claims did not present nonjusticiable political question and that the claims are ripe for decision. 

               In In re Trump, the District of Columbia and the Maryland sued the President seeking declaratory and injunctive relief for alleged violations of the Emoluments Clause.  Plaintiffs alleged harm to their sovereign and/or quasi-sovereign interests, as well as proprietary and other financial harms.  The district court in Maryland denied the President's motions to dismiss for lack of standing, failure to state a claim, and for leave to file an interlocutory appeal.  The President then sought a writ of mandamus.  The court of appeals held that the district court abused its discretion in failing to certify the orders denying dismissal for interlocutory appeal.  The court went on to hold that plaintiffs lacked Article III standing.  Plaintiffs' petition for rehearing en banc was granted.  The case is pending before the full court.  780 F. Appx 36 (4th Cir. 2019).