Standing Silliness in DC v. Trump

Last week I attended a part of the argument in DC v. Trump, one of three Emoluments Clause cases pending against President Trump. This case was brought by the governments of Maryland and the District of Columbia. It is being heard by Judge Messitte of the United States District Court for the District of Maryland, who sits in Greenbelt, Maryland. The argument, which began around 10 am and was wrapping up when I left at 3pm, was focused solely on whether the plaintiffs had standing to bring the case. This is a lot of time to spend on standing, and a good deal of the argument got down into the weeds of the various components of standing (injury in fact, traceability, redressability, etc.).

The most important takeaway is that Judge Messitte is clearly not inclined to follow the lead of Judge Daniels in CREW v. Trump and dismiss the case for lack of standing, at least not at this stage. The judge at one point became so impatient with hearing about the CREW v. Trump opinion that he told defendant’s counsel “don’t cite Judge Daniels to me.”

Judge Messitte seemed to be starting from the presumption that if the Foreign and/or Domestic Emoluments Clauses were being violated (a question on which he did not, from what I heard, express an opinion), somebody ought to be able to go to court to complain about it. Since no one else had any better standing to sue than these plaintiffs, he might as well let them go forward. The court evidently viewed the question of standing to be a legal technicality or fiction, one that he was happy to help the plaintiffs figure a way around.

Certainly anyone listening to the argument would come away with the impression that standing doctrine is rather ridiculous. A good deal of the discussion focused on the claims of Maryland and DC that the Trump Hotel in DC had caused economic injury to various competitor hotels and restaurants in the surrounding area due to the Trump Hotel’s alleged advantages in securing business from state and foreign governments. This led to Judge Messitte asking whether the MGM Hotel in National Harbor (one of the properties where Maryland claimed to have an economic interest) would actually lose gambling revenue from the Trump Hotel given that the latter has no casino. And defendant’s counsel kept harping on the fact that the plaintiffs had provided anecdotal evidence of competitive injury only to the Ritz and the Four Seasons, which were not (at least according to him) among the competitors for which the plaintiffs could assert a derivative economic interest.

While I admit to not being an expert on standing or having read all of the cases discussed in the argument, this whole line of inquiry strikes me as rather silly. I assume that if one looked hard enough one could find some people who stayed or ate at the Trump Hotel, rather than a competitor, for reasons having to do with the fact that the former is associated with the president. It seems rather unlikely, however, that one could show that any competitor suffered a net economic injury in light of the fact that some people also undoubtedly chose not to frequent Trump’s hotel (or restaurants) for precisely the same reason. And even if an injury could be shown, it is hard to see it results from the fact that Trump has an ownership interest in the hotel, as opposed to the fact that his name is on it.

Far more importantly, any competitive injury suffered by other hotels and restaurants has nothing to do with the purposes of the Emoluments Clauses and is therefore not within the zone of interests protected by these provisions. To give an analogy, my wife loves the original BLT restaurant and would undoubtedly be interested in dining at the new BLT Prime in the Trump Hotel. By the logic of plaintiffs’ theory, I should be able to sue President Trump on the grounds that if his establishment were not as busy with foreign and state government visitors trying to curry his favor, it would be easier for me to get a dinner reservation. I assume that this argument would be laughed out of court, but I fail to see how it is any different than plaintiffs’ “competitive injury” theory.

Of the standing cases I heard discussed, the most relevant seems to me to be Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974), a case in which the plaintiffs alleged that the Incompatibility Clause was violated by the fact that more than 100 members of Congress were in the reserves during the Vietnam War. Their alleged injury stemmed from the fact that this violation made Congress less independent of the executive branch and therefore more likely to support the war, thereby injuring plaintiffs as citizens and taxpayers opposed to the war. The district court accepted this theory of standing, finding the Incompatibility Clause to be a “precise and self-operative” provision designed to prevent the very type of harm asserted.

The Supreme Court, however, rejected the district court’s view of standing:

Furthermore, to have reached the conclusion that respondents’ interests as citizens were meant to be protected by the Incompatibility Clause because the primary purpose of the Clause was to insure independence of each of the branches of the Federal Government, similarly involved an appraisal of the merits before the issue of standing was resolved. All citizens, of course, share equally an interest in the independence of each branch of Government. In some fashion, every provision of the Constitution was meant to serve the interests of all. Such a generalized interest, however, is too abstract to constitute a “case or controversy” appropriate for judicial resolution. The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries.

Closely linked to the idea that generalized citizen interest is a sufficient basis for standing was the District Court’s observation that it was not irrelevant that if respondents could not obtain judicial review of petitioners’ action, “then as a practical matter no one can.” Our system of government leaves many crucial decisions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.

Id. at 227-28.

The Emoluments Clauses, like the Incompatibility Clause, are “precise and self-operative” structural provisions designed to protect the independence of one branch of the federal government. This is an interest in which all citizens share equally, and therefore is too generalized a grievance to support standing. If this means that no one would have standing to sue (which, as I will discuss in a moment, it may not), that is not sufficient reason to find standing.

Of course, Schlesinger is not on all fours with DC v. Trump because the plaintiffs in Schlesinger asserted their actual grievance, rather than an interest trumped up (sorry) solely for purposes of the litigation. It is obvious that neither Maryland or DC has any actual interest in the “competitive injury” that the Trump Hotel allegedly inflicts. It is as if the Schlesinger plaintiffs, instead of asserting their actual grievance, had claimed injury by virtue of the fact they might lose out to a member of Congress for a coveted slot or promotion in the reserves. Such a move would not have worked, and should not work now, because the alleged grievance is not anywhere in the vicinity of the zone of interests protected by the constitutional provisions at issue.

I will say, however, that there was a part of the plaintiffs’ standing in DC v. Trump position that was at least somewhat persuasive. They made a strong argument, based on in large measure on Federalist No. 73, that the Domestic Emoluments Clause (which prohibits the president from receiving additional emoluments from the United States or any individual state) is designed in part to ensure that all states are treated equally. Thus, if one or more states were providing emoluments to the president, there is an argument that the other states suffer a cognizable injury distinct from the injury suffered by the public at large. Accordingly, there is a plausible basis for Maryland (not DC, which seems to keep forgetting that it is not a state) to assert standing with respect to the Domestic Emoluments Clause only.

Unfortunately, it seems likely that Judge Messitte will allow Maryland and DC to proceed on both the Foreign and Domestic Emoluments Clause claims. As there is no plausible standing theory on the former claim, and because Congress at any rate should be the arbiter of Foreign Emoluments Clause violations, it remains essential that Congress bestir itself to take action on this front.