The Injury in the Emoluments Clause Case

By Michael Dorf

As many readers are no doubt aware from the substantial publicity the case has already received, (e.g., here) a recent federal lawsuit against President Trump seeks declaratory and injunctive relief for the latter’s alleged violations of the Emoluments Clause. The dream team of lawyers representing the plaintiff includes legal scholars Erwin Chemerinsky, Zephyr Teachout, and Laurence Tribe, as well as Bush II and Obama senior ethics counsels Richard Painter and Norman Eisen (as well as other attorneys, including my former student Stuart McPhail).

The substantive argument for an Emoluments Clause violation has been made in various fora already, including by Eisen, Painter, Tribe, and Joshua Matz in an article in The Atlantic, and by Eisen, Painter, and Tribe in a Brookings white paper. The public response of the Trump team thus far—that paying fair market value for a hotel room does not violate the Emoluments Clause—is woefully inadequate to address either the factual scope or the legal breadth of the arguments made against the president.

To win a lawsuit in federal court, one must first establish legal standing to sue. Some commentators have suggested that the plaintiff in the Emoluments Clause case—Citizens for Responsibility and Ethics in Washington (“CREW”)—lacks standing because it is not “injured” (as required by the Court’s standing cases) by Trump’s Emoluments Clause violations. Is CREW injured?

The complaint notes that CREW is a “nonprofit, nonpartisan organization founded in 2002 that works on behalf of the public to foster an ethical and accountable government and reduce the influence of money in politics.” The enormous volume of work, including but not limited to providing information to reporters and the public, occasioned by Trump’s Emoluments Clause violations, the complaint alleges, has diverted the resources and energy of CREW away from other vital functions, thus undermining its ability to fulfill its basic mission.

Critics cite the Supreme Court’s rejection of standing in Clapper v. Amnesty Int’l USA for the proposition that the diversion of resources is a mere “self-inflicted injury” that does not satisfy the Article III standing requirement. But that reads Clapper far too broadly. The particular steps taken by the plaintiffs in that case involved altering their own behavior for fear of the possibility that the government might be doing something to them (surveillance). Clapper did not say that anything a plaintiff does in response to alleged government illegality is a mere self-inflicted injury.

In particular, Clapper did not overrule nor purport to overrule Havens Realty Corp. v. Coleman, cited by CREW in its complaint. There the Supreme Court upheld organizational standing for a non-profit, Housing Opportunities Made Equal (HOME), dedicated to opposing housing discrimination on the ground that the defendant’s allegedly illegal activity undermined HOME’s mission. The Court said that “the consequent drain on the organization's resources” sufficed to establish Article III injury.

The parallel between HOME in Havens and CREW in the Emoluments Clause case is all the more evident in light of another case cited in CREW’s complaint, the Second Circuit’s 1993 opinion in Ragin v. Harry Macklowe Real Estate Co. In upholding organizational standing based on diversion of resources, the Second Circuit noted that the Havens Court was approving the theory set forth in HOME’s complaint. That allegation stated that HOME had “been frustrated by defendants' racial steering practices in its efforts to [obtain] equal access to housing through counseling and other referral services. Plaintiff ... has had to devote significant resources to identify and counteract the defendant's [sic] racially discriminatory steering practices.”

Thus, the plain vanilla reading of Havens is confirmed by its interpretation in the federal appeals court and supports the standing theory set forth in the Emoluments Clause complaint. Faithful application of Havens and Ragin (which applies because the lawsuit was filed in the SDNY) leads to the conclusion that CREW has standing. Even if one thought that Clapper suggests that the current Supreme Court might be inclined to overrule Havens—and as I have noted, that is not the best reading of Clapper—the SDNY and the Second Circuit would be obligated to follow Havens, because the Supreme Court has made clear that lower federal courts do not get to say that a SCOTUS precedent on the books has been fatally undermined by some other legal development.

Some may worry that there is no logical stopping point to the Havens principle. What is to prevent people who oppose any government policy from forming an organization dedicated to opposing that policy and then suing on the ground that the pursuit of the policy by the government (or a government official) causes the organization to divert its resources to fighting the policy? Let me suggest three answers.

First, HOME in Havens, the plaintiff organization in Ragin, and CREW in the Emoluments Clause case were all pre-existing organizations. If organizations forming on a pretextual basis simply for the purpose of bringing suit prove to be a problem, they could be carved out in the future.

Second, it is not enough to oppose a government policy or the actions of a president or other government official in order to get into court. In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the plaintiff organization must state a legally cognizable claim. The factual allegations must be rooted in fact or the parties and attorneys risk sanctions under Rule 11. Standing doctrine is not the only gatekeeper to the federal courts.

Third, these other gatekeepers are doing an adequate job, as illustrated by the absence of a flood of litigation. Havens has been the law for almost 35 years, without any discernible floodgates problem.

Does all of this mean that there is no chance that the Supreme Court—were the case eventually to end up there—would say that CREW lacks standing? Of course not. The Supreme Court can always change the law of standing and has been known to reach dubious standing decisions as a means of ducking cases it ought to be deciding. But the possibility that the Supreme Court might change or misrepresent the law hardly justifies the conclusion that the law is not currently what it is. And what the law currently is permits standing for CREW.