Brianne J. Gorod // 6/19/17 //
Last week, nearly 200 members of Congress sued President Trump for failing to do what the Constitution’s express language requires him to do: go to Congress and obtain the consent of its members before accepting benefits from foreign states. This lawsuit—Blumenthal and Conyers v. Trump—is an important effort to hold the President accountable to the Constitution and to ensure that the American people do not have to ask whether the President is acting in their interests, or simply in his own. It is also an important effort to redress the individual injury suffered by every member of Congress who has been denied an opportunity expressly guaranteed by the Constitution’s Foreign Emoluments Clause: the opportunity to cast a binding vote on whether to grant or withhold consent to the President’s acceptance of foreign emoluments. We, at the Constitutional Accountability Center, are proud to represent the plaintiffs in this effort.
We were also proud last year to file an amicus brief on behalf of members of Congress (many of whom are also plaintiffs in the Foreign Emoluments Clause case) in a case that was then called House v. Burwell (now called House v. Price). In that brief, we argued that the House of Representatives as a body did not have standing to sue the Obama Administration for making cost-sharing reduction payments that are required under the Affordable Care Act.
It did not take long for one commentator to suggest that there is some inconsistency in our conclusion that the House did not have standing to sue in House v. Price, but that members of Congress do have standing to sue in Blumenthal and Conyers v. Trump. However, congressional standing is not an all-or-nothing proposition, available in all circumstances or available in none. We have never taken that position, and neither have our clients. Instead, members of Congress—just like any other plaintiffs—may have standing in one case and not in another, depending on the specific claim.
In House v. Price, the House argued, and the district court agreed, that plaintiff’s claim was that the executive had violated the Appropriations Clause of the Constitution. But our clients’ position was that the House merely disagreed with the executive branch’s interpretation of a statute. Specifically, the House disagreed with the Obama Administration’s argument that a permanent appropriation provided funding for the cost-sharing reductions required by the ACA. In other words, that case involved nothing more than a political dispute about the proper implementation of federal law. It is well established that when a legislator alleges that a member of the executive branch has not complied with a statutory requirement, this does not establish the sort of “concrete and particularized” injury that gives rise to Article III standing. (The district court’s decision to the contrary has been appealed, and that appeal is currently being held in abeyance by the D.C. Circuit.)
In Blumenthal and Conyers v. Trump, by contrast, plaintiff members of Congress do not argue that the executive branch is misinterpreting a federal statute. Rather, the plaintiffs in Blumenthal and Conyers v. Trump make a very specific, and limited, argument for standing: that the President, by failing to come to Congress and identify the benefits from foreign states that he wishes to accept, is denying members of Congress the opportunity to cast a binding vote that they are each individually entitled to cast under the explicit language of the Foreign Emoluments Clause.
That Clause, after all, expressly prohibits federal officeholders, including the President, from accepting benefits from foreign states without “the Consent of the Congress.” There are few provisions in the Constitution that so clearly confer a specific entitlement on members of Congress, but this one does: each member of Congress is entitled to cast a binding vote on whether to grant or withhold consent to a federal officeholder who desires to accept foreign emoluments. And President Trump has denied members of Congress the opportunity to cast those votes by failing to disclose the emoluments he wishes to accept. Members of Congress cannot, after all, consent to what they do not know. This theory of standing falls squarely within a long line of cases which hold that members of Congress are injured when presidential action nullifies a specific congressional vote or opportunity to vote.
Thus, to conclude that there is standing in Blumenthal and Conyers v. Trump only requires a court to hold that members of Congress have standing to sue in this very specific context. It hardly raises the “specter of general legislative standing” that the House’s theory of standing in House v. Price did.
Blumenthal and Conyers v. Trump is also distinct from House v. Price because in House v. Price, as we explained in our brief in that case, there were “alternative and more appropriate tools available to legislators to object to executive branch actions that they view as inconsistent with governing law.” Here, by contrast, members of Congress have no legislative recourse. President Trump’s refusal to seek the congressional consent required by the Constitution deprives members of Congress of their opportunity to approve or reject his acceptance of specific payments and other benefits from foreign states. Legislators cannot cure this injury on their own. Without a judicial order, they can do nothing to force President Trump to seek their consent before accepting those payments and benefits.
In sum, there is no inconsistency between our position in House v. Price and our position in Blumenthal and Conyers v. Trump. We don’t think members of Congress always have standing to sue. But they definitely do in Blumenthal and Conyers v. Trump.