[Jonathan H. Adler] Does the emoluments clause lawsuit against President Trump stand a chance?

President Trump on Monday in the White House. (Evan Vucci/Associated Press)

Monday morning, Citizens for Responsibility and Ethics in Washington (CREW), a liberal government watchdog organization, joined with several prominent law professors to file a lawsuit against President Trump alleging that he is in violation of the emoluments clause (a.k.a. the foreign emoluments clause) of the Constitution. The suit, filed in the Southern District of New York, seeks a declaratory judgment on the meaning and application of the clause, a ruling that Trump has violated the clause and an injunction prohibiting further violations. Those joining CREW in the suit include Harvard’s Laurence Tribe, UC Irvine’s Erwin Chemerinsky, and Fordham University’s Zephyr Teachout. The complaint is here.

One problem for the litigants is that there is virtually no precedent on the scope and application of the emoluments clause, and scholars disagree on what sorts of arrangements would constitute a violation of the clause, and even whether it applies to the president at all.  Historical practice provides some guide, but it’s not dispositive. There have been a handful of memos from the Office of Legal Counsel over the years, but they are not entirely consistent with one another. While we can reject some of the more expansive interpretations of the clause suggested by some commentators, real questions remain about which of the president’s extensive business relationships and interests could give rise to emolument clause violations and under what circumstances. (And even if the president is not violating the emoluments clause, there are still plenty of reasons to be concerned that his investments create other conflicts of interest, and that he should do more to extricate himself from such conflicts, but that’s a subject for another time. This post is focusing on the legal issues.)

CREW faces a bigger problem than trying to convince a federal court that Trump is violating the Constitution. It will first have convince the court that it is entitled to litigate this question at all.  In order to maintain a suit in federal court, a plaintiff must show that the requirements of Article III standing are satisfied. In this case, CREW’s arguments for standing are a stretch. In short, CREW will have a hard time showing that it has suffered a cognizable injury from Trump’s alleged violation of the emoluments clause — an injury that is both actual or imminent as well as concrete and particularized to CREW — let alone that such injury was caused by Trump’s conduct and that it is redressable by a favorable court judgment.

The core of CREW’s argument for standing is that Trump’s violations of the emoluments clause have injured CREW because, as an organization dedicated to policing government ethics and misconduct, these violations give it more work to do and divert resources from other issues. From the complaint:

CREW brings this action to stop and prevent the violations of the Foreign Emoluments Clause that Defendant Donald J. Trump has committed and will commit, which have already injured—and, without a remediable order from this Court, will continue to injure—CREW in the form of a significant diversion and depletion of its time, resources, and efforts. CREW has standing under Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), because there has been a “concrete and demonstrable injury to the organization’s activities[,] with the consequent drain on the organization’s resources.” See also Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904-05 (2d Cir. 1993).

For those familiar with standing law, this may seem like an odd argument because, if it were accepted in such broad terms, it would make standing a non-issue for advocacy organizations of all stripes. Environmental organizations, for example, would be able to assert standing for any and all alleged violations of federal environmental laws on the grounds that such violations injure those groups by forcing them to divert resource