Reader Richard Weisfeld has asked a question that may puzzle others. He writes:
I’d be thankful if you could offer some insight: I’ve read about “standing”, a concept I generally do understand, even as a layman, in regard to the foreign emoluments clause. Specifically, I read that Washington DC hotel owners needed to bring suit, because they had standing, having lost business to the Trump Hotel. Where does the idea come from that this clause was somehow in the constitution to protect businesses from the president and unfair competition, as opposed to being there to protect every American citizen, and the republic itself, from corrupt presidents, or presidents who would be swayed by foreign powers or entities, to take actions against the interests of the United States? How is that not the obvious primary purpose for the clause? How does every citizen not have standing? There must be some historic line of reasoning, but I have not heard one explained or reported.
This is a great question, and resolving it presents perhaps the largest challenge to the plaintiffs in the emoluments lawsuits. The short answer runs like this —
Leaving the emoluments clauses to one side for a moment, federal courts only hear cases in which there is an actual “case or controversy” — a concrete real world dispute in a matter over which the particular court has “subject matter jurisdiction” and that can be resolved by an order from the court, whether it be a finding of guilt in a criminal case, liability in a civil case, or an order of injunctive relief compelling somebody to do something. Federal courts do not render “advisory opinions” — legal opinions on a matter that has not actually manifested itself in a concrete real world dispute.
Therefore, the first hurdle any plaintiff in federal court must overcome is to demonstrate that he, she, or it has an actual stake in a real world dispute. This is a problem in the emoluments clause suits against Mr. Trump. As Mr. Weisfeld points out, in a general sense, all U.S. citizens have an interest in ensuring that the president and all other federal officials adhere to the constitution. But the federal courts long ago decided that that sort of generalized interest in constitutional order is customarily not sufficient to grant standing. Some more direct impact on the plaintiff is required. Hence, the hotel owners — the argument being that Mr. Trump is violating the foreign emoluments clause by drawing foreign government guests to his Washington hotel and thus causing a discrete injury to other hoteliers who would otherwise get the business.
I am not an expert on standing in federal civil actions, and thus have no intelligent opinion about this approach. I have to say, however, that it feels thin to me. Better informed observers than I have opined that this may prove to be the Achilles heel of the plaintiffs’ case.
Even if the courts grant standing to some of the emoluments plaintiffs, and if the courts conclude that the president is covered by the foreign emoluments clause, and if the courts conclude that some kinds of commercial transactions qualify as prohibited emoluments, there remains the question of remedy. Perhaps a court could order a president to disgorge payments received as prohibited foreign emoluments. Perhaps it could issue an injunction ordering him to cease engaging in activities that violated the clause. So, at best, the current private lawsuits annoy Mr. Trump, strip him of some cash, and prevent him from making some more in the future. But even if a court decides to go that far, it cannot order the president to vacate his office.
If that’s right, you may well ask, “Then what good is the foreign emoluments clause?” The answer, I think, is that the Framers plainly believed that a president could be impeached for a violation of the clause. Edmund Randolph, a member of the Virginia delegation to the Philadelphia convention, said in the later Virginia Ratifying Convention:
There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached.
Thus, it may well prove that there is no meaningful remedy available in courts for presidential violations of the emoluments clauses, and that the only meaningful remedy for such a violation is to impeach, convict, and remove the president under Article II, Section 4.
Frank Bowman
