Activist groups and unions didn’t have standing to sue Donald Trump under the Emoluments Clause. States and private competitors didn’t have standing to sue either, the 4th Circuit ruled last year. If Democrats in Congress don’t have standing to sue over alleged violations of the Emoluments Clause, then who does?
Nobody, says the DC Circuit Court of Appeals in a unanimous decision, because this is an institutional dispute rather than an individual one. The court also strongly hints in its opinion in Blumenthal et al v Trump that it’s a political issue for the legislative and executive branches to hash out between themselves:
A federal appeals court in Washington threw out a lawsuit accusing President Trump of illegally profiting off his private businesses while in office, ruling that the Democratic lawmakers who brought the suit lack standing to sue.
A three-judge panel on the D.C. Circuit Court of Appeals on Friday said in a brief 12-page decision that the dispute centering around the Constitution’s emoluments clauses has no place in the court system. …
The decision is a major win for Trump, who unlike every recent president, has refused to relinquish control over his business assets by placing them in a blind trust.
First off, the court notes repeatedly, the case fails on its face because it involves political power, and only a minority of Congress is participating in the lawsuit:
The district court erred in holding 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.” Id. at 62 (quotation marks omitted). After Raines and Bethune-Hill, only an institution can assert an institutional injury provided the injury is not “wholly abstract and widely dispersed.” Raines, 521 U.S. at 829. …
Here, regardless of rigor, our conclusion is straightforward because the Members—29 Senators and 186 Members of the House of Representatives—do not constitute a majority of either body and are, therefore, powerless to approve or deny the President’s acceptance of foreign emoluments. See United States v. Ballin, 144 U.S. 1, 7 (1892) (“The two houses of [C]ongress are legislative bodies representing larger constituencies. Power is not vested in any one individual, but in the aggregate of the members who compose the body[.]”). For standing, the Members’ inability to act determinatively is important, see Raines, 521 U.S. at 829, and, conversely, the size of their cohort is not—so long as it is too small to act. That is, we assess this complaint—filed by 215 Members—no differently from our assessment of a complaint filed by a single Member.
If Congress filed the lawsuit as a body, it might have standing to pursue their claims. However, the opinion also hints that this is a political rather than legal issue, even beyond the technical problems of standing under Raines. They stress that the plaintiffs still have political recourses open to them to pursue their argument, and then state that this case doesn’t present an opening for judicial intervention anyway:
The Members can, and likely will, continue to use 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 we 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.
That sounds as though the court would dismiss a lawsuit even if authorized by both chambers of Congress on the Emoluments Clause claim. It’s not difficult to see why, either. Congress has never really addressed the Emoluments Clause through legislation except to require financial disclosures by senior executive branch officials, including the president. It hasn’t even required the release of tax returns nor mandated the use of blind trusts by presidents, practices that are voluntary if heavily impacted by political pressure. Congress can act by defining emoluments in statute, assuming they can do so with a presidential signature or a veto override, laws which the judiciary could then review if challenged by future presidents. As long as it remains a constitutional dispute rather than a legal dispute, the court implies, it’s a question to resolve between the legislative and executive branches.
Where does that leave us on the Emoluments Clause? Basically nowhere in this moment. Congress could take it up through impeachment, but House Democrats have really emptied their ammunition stores on that mechanism, politically speaking. Voters elected a businessman to be president without any worry over whether he continued to operate his business empire while in office. They have an opportunity to express their displeasure with his choices at the ballot box in November. Democrats can make the Emoluments Clause argument to the people, the court says, and leave it to them.
A future Congress could — and probably should — work on a clearer consensus definition of emoluments, in case voters decide to keep sending moguls to the White House, and quit demanding that the judiciary do their job for them. That’s the clear message sent by the DC Circuit Court of Appeals today.