Tuesday, January 24, 2017

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.


Unknown said...

I've read in other blogs the basis for standing is really about damages, and arguing that CREWS may have standing for damages but not for injunctive relief, citing a Sixth Circuit decision saying that standing for damages does not lead to standing for injunctive relief. Fair Elections Ohio v. Husted, 770 F.3d 456, 460 (6th Cir. 2014)


Michael C. Dorf said...

The complaint seeks declaratory, injunctive, and any other relief that may be proper. So even if there's not enough for an injunction, damages should suffice. And that's true even if the plaintiff doesn't ask for damages, because declaratory relief falls within Art III so long as a coercive action (i.e., one for injunctive relief or damages) could be brought.

SF17 said...

It would seem from your analysis that a prudent person could form a generalist organization, which could then be used for 'standing' purposes in each case only because they demonstrated that they spent time and money fighting an instance of x, y or z. This would seem to be an absurd result of upholding the original case, and even if the intention was not present in this case (maybe it was), the result is ripe for abuse and could possibly end up turning 'standing' into a nominal requirement, which in turn might be detrimental -- your response?

Michael C. Dorf said...

I pause first to wonder whether the pseudonymous handle "SF17", which links to an anonymous profile, is a generalist account that is used simply for trolling purposes. JK (as the kids say). The short answer is this hasn't happened since Havens. Further, the organizations in all three cases (Havens, the 2d Cir case, and this one) all had particular missions; they were not special purpose vehicles designed to circumvent Art III standing limits. Were the phenomenon SF17 describes to proliferate, one possibility would be to limit Havens to organizations (like the ones in these cases themselves) that have a special purpose of combating the particular form of illegality. But even if that were to occur, my point is that AT PRESENT the law favors standing. The SCOTUS can change that, but neither the SDNY nor the 2d Cir can.

el roam said...

Thanks for that interesting post . I just couldn’t understand :

If there is a crucial public / federal issue like the one presented in that post , how would it matter if the organization has standing right or not ?? The author of the post , hasn't suggested , who else , can have standing right . Suppose that no one , but such kind of organization , then : a public issue , would stay unresolved ?? Apparently, it is enough for having such right one may argue .

Anyway , having a glance on " The federal rule of civil procedure " ( 12(b) (6) ) it is dictating that :

" a party may assert the following defenses by motion " that means " a party may " and not , that :

" (6) failure to state a claim upon which relief can be granted "

Would be rejected on spot , preliminary by the court ( as its duty to do so ) So , we stay yet it seems with an issue of concrete discretion of judges , according to strict reading of the law .

Finaly : That constitutional clause , suggests clearly , a strict and well defined list ;

" from any King, Prince, or foreign State "

Now, any king or prince, should be dismissed apparently in my view , this is due to lack of personal connection (between Trump and such hypothetical prince or king, as individual figures). We are left with " foreign state " . However, the international current jurisprudence is very clear (and in fact constitute customary international law):

Can't be extended to private or commercial law or relationships, but, solely sovereign acts. Only them to be considered as enjoying immunity for example . That is how the wording " foreign state " should be interpreted in International terms !!

Is it clear from that clause ?? not at all !! does it need very lengthy interpretation ?? yes indeed it seems !!

So , who is going to bring it to court otherwise the respectable author hasn't explain ??


el roam said...

just he who wants to read :

28 U.S. Code § 1605 - General exceptions to the jurisdictional immunity of a foreign state

here :



Asher Steinberg said...

Isn't Rodriguez de Quijas pure dictum? The Court overruled the precedent it chided the lower court for predictively overruling and affirmed. It's not even dictum that helps anyone predict whether the Court will affirm what a lower court does; if the lower court predictively overrules and guesses right, it's affirmed, if it guesses wrong it's reversed, but it's never going to be reversed simply because it predictively overruled. Maybe Rodriguez de Quijas states a good rule of precedent - I don't think so in spite of not being a fan of predictive theories of precedent generally - but lower courts have no obligation to listen to what amounts to a dig at a lower court the Court affirmed on the very grounds that court gave, and that doesn't even help a lower court predict whether the Court would affirm its decision, which is the usual justification one hears for following dicta. To the contrary, following precedent that's likely to be overruled increases one's chances of being reversed.

As to Havens, I strongly suspect it can be narrowed in some not entirely incoherent way to not apply here, even by lower courts (on which see Richard Re's article on narrowing from below), or simply distinguished (does Josh Blackman not have a good point on Havens only grounding damages claims?). Take a look at Judge Millett's dubitante opinion in PETA v. USDA, which proposes a narrow reading of Havens that would probably leave these claims in the cold. (It's a dubitante opinion not because she doubts Havens, but because she doubts circuit precedent on it.)

banzhaf's Blog said...

A law suit filed today by a group of prominent law professors, challenging President Donald Trump for alleged violations of the Constitution's Emoluments Clause, may well yield the same result - a complete rout and debacle, including a major loss - as the last major case brought by law professors, says public interest law professor John Banzhaf.

In 2006, a law suit largely put together by constitutional and other law professors, arguing that universities which accepted federal funding nevertheless had a constitutional right to bar military recruiters from their campus, was rejected unanimously by the U.S. Supreme Court which sharply rebuked the law schools and law professors who brought the case for even making the argument.

The Court trashed the four legal theories advanced by the law professors, especially Harvard's statutory interpretation argument, although six justices went to Harvard Law.

Worse, the case backfired on the learned professors when the Court also went on to say that Congress could probably mandate that colleges permit military recruiters on campus, even if the school does not accept any federal funding - a major and (to them) an unexpected loss.

Perhaps even more stinging for the law professors was how they were treated and described by the major media, including even the liberal media which supported their cause but nevertheless trashed their law suit.

For example, the New York Times, in a piece entitled "Supreme Court Smackdown," said "On Monday, the best minds in the legal business struck out. The vote was 8-to-0 against them -- a shutout, a rout, a humiliation." It cited what it called the "Clueless Law Professor Theory" in trying to explain it.

The Washington Post, even before the Supreme Court ruled, said "this litigation is something of a misfire. . . . As a legal matter, the [law school's] claim seems wrong." Later it opined that the suit "trivializes the plight of gays in the military."

Likewise, the Los Angles Times, in a piece entitled "Flawed Legal Logic," asked "how could the nation's top law schools, overflowing with brilliant legal scholars, have agreed to make such an absurd argument? . . . But their constitutional argument is embarrassingly weak. It's also dangerous." It cautioned that "law schools should step back from their self-indulgent campus politics."

The Harvard Crimson also weighed in, noting that Chief Justice Roberts singled out the Harvard professors' brief, and later wrote that the Harvard faculty members' interpretation of the Solomon Amendment is "clearly not what Congress had in mind."

It has been said that "those who can, do; those who can't, teach," and that many law professors could not litigate themselves out of a paper bag, much less find their way to the courthouse, notes Banzhaf, who has won over 100 legal proceedings, including several major constitutional victories.

So, while this suit must be judged on its individual merits, the public should not assume that it has a significant probability of success simply because prominent law professors are backing it.

PS: As the law professor behind the famous Supreme Court case in which a new and tiny group of law students was granted standing - in the face of the infamous Sierra Club ruling - to challenge environmental harm which affected everyone; who was granted standing to force the Attorney General to seek (over his objection) the appointment of a Special Prosecutor; and who as a white male had standing to successfully challenge discrimination against women, blacks, Jews, the deaf and other groups of which I am not a member, I know a bit about legal standing. For that reason alone, I think this CREW law suit may go down in flames just as the FAIR on did. SEE:

Unknown said...

Could it be legally argued that "substantive injury" in this case is to "the body politic"? The population of America, like the membership of a corporation, is a collective entity. It has a sworn guarantee from the president that he shall uphold the Constitution. Violation of his oath voids the guarantee made to us, singly and collectively. Might CREW represent an abstract or artificial individual, a generic American citizen, who is injured by violation of the Constitution? Forgive me, I'm (obviously) not a lawyer. I can't bear the idea that a quibble about standing to sue will prevent CREW and any other plaintiff from complaining about foreign emoluments, and place Trump above the law, beyond the reach of accountability.

Sherry F. Colb said...

bhanzaf's Blog's long comment on a completely different case that was rejected on the merits, not standing, is at best a non sequitur. Nowhere do I say in the blog post that the fact that some of the lawyers for the plaintiff are prominent law professors is a reason why the plaintiff will or should win. And the suggestion that these are out-of-touch academics is misdirected. Tribe and Chemerinsky are both experienced litigators.

Juelit-Viola Vernay: It's a nice suggestion but the standing case law rejects the notion of a "generalized grievance" so a case purporting to represent the body politic as a whole would not get off the ground.

Joe said...

I appreciate the discussion and think the facts in the "tester" case are helpful though how much it will be taken from the racial discrimination case to this one is unclear to me. On principle, yes, I think there is merit.

But, especially since many judges will not want to touch this issue -- seeing it as a political question -- I am wary. Who is to know? Emily Bazelon opened up the question of standing etc. on Twitter and various people responded. One arguing it was an uphill battle was a law professor behind King v. Burwell. The creativity in that and related cases suggest precedent and novelty alone are applicable in different ways.

Another person open to a lawsuit but thinking someone with a more financial burden (akin to a person actually trying to get housing) spoke of a "Pandora's Box" if the CREW approach was taken (the person was sympathetic to their efforts). This to me sounded rather overblown & agree with your comments basically there too.

Election Law Blog linked to an interesting article on the challenge earlier today for those interested. http://www.moresoftmoneyhardlaw.com/2017/01/crew-emoluments-suit-congress/

Essay Help College said...

Thank you for in depth information. Even I heard the new regarding CREW sues Trump for violating the Constitution by illegally receiving payments from foreign governments. www.usessayhelp.blogspot.com

Sunny said...

Thank you for sharing this kind of information.....it will help all people


egarber said...

I saw in news reports that the housing precedent might not apply here because Congress has made discrimination in housing a statutory priority. Does that potentially distinguish it?

egarber said...

NY Times:

"But several scholars on Monday noted that Congress had enacted a statute that made it easier to challenge housing discrimination, but not emoluments clause violations."

J Adler said...

For a decidedly different take on the standing claim (and an explanation for why Havens is readily distinguishible), see:

And as for Clapper, it may be worth noting that this was a Second Circuit case too, and we know what the Supreme Court thought of the Second Circuit's approach to standing there.

Michael C. Dorf said...

3 quick things:

1) The existence of a statutory remedy in the FHA is a potential ground for narrowing Havens. But Havens itself doesn't rely on it. So that narrowing/overruling would need to come from the SCOTUS

2) The earlier reply to bhanzaf said it was from Prof Colb when it was really from me. We share a computer and I forgot to log off her account. Oops.

3) Jonathan may well be right to predict that the SCOTUS could once again disagree with CA2, as it did in Clapper. But under RdQ, the CA2 must follow the law as is now, not as it anticipates. See 1). Also see Dorf, Prediction and the Rule of Law. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1107&context=facpub

Joe said...

Off topic: Michael Dorf discussed "What's Wrong with the First Amendment" in a past post. I am reading the book now and it provides some interesting perspectives that run counter to current First Amendment norms. Dorf gets a thanks in the acknowledgments.

Overall, I think it's too heavy-handed, though the book in the introduction makes clear that it intends to be a short work that raises questions, not a complete argument, pro and con. This would require much more space etc. That's fine, but think it would have done well to tone it down at times.

The most convincing argument is that free speech is one of many values and needs to be balanced in application. Comments like commercial speech don't warrant any protection (except backhandedly from other rights) etc. ironically violate that sense of moderation. Anyway, it's worth a look.

Red955i said...

My layman's question is far simpler. While I've read the works of many legal scholars defining how the law applies to the POTUS through the use of the word "office", I still go back to question this on far simpler terms. Article 1 specifically refers to the formation or, and operation of, the Legislative Branch. Article 2 covers the Executive Branch (POTUS). Article 2 does not contain an Emoluments Clause nor does it refer back to Article 1. Couldn't an argument, based on this simple fact, be presented to say it does not apply to POTUS? Especially since Title 18-208 excludes POTUS>