//  11/16/17  //  Commentary

The District of Columbia and Maryland have sued President Trump to stop him from violating the Foreign and Domestic Emoluments Clauses—one of three emoluments-related lawsuits pending against the President. On Tuesday, we and 18 other law professors submitted an amicus brief in federal district court arguing that the District of Columbia and Maryland have standing to pursue their constitutional claims. As we explain in the brief, the plaintiffs’ claims are cognizable both under the Supreme Court’s competitor standing doctrine and under a line of cases holding that states have standing to enforce constitutional provisions that protect their opportunity to influence national governance.

The brief, filed with the federal district court in Maryland by our counsel Gina Kline and Jean Zachariasiewicz of the law firm Brown Goldstein & Levy, LLP, focuses specifically on the threshold questions in the case: whether the District of Columbia and Maryland meet the requirements for Article III standing, whether they have a cause of action under the Emoluments Clauses, and whether their claims fall within the “zone of interests” that those clauses protect. We think that the answer to all those questions is clearly “yes.” (While our brief doesn’t address the merits of the plaintiffs’ claims, several other amicus briefs do—including one filed by Take Care co-blogger Jed Shugerman and a group of legal historians.)

On competitor standing, the plaintiffs have 45 years of Supreme Court case law going for them. It is well settled that a plaintiff with a proprietary interest in a business enterprise has standing to challenge actions by government officials that provide an illegal advantage to a direct competitor. Courts have defined the scope of competitor standing according to the “same arena” test: Does the plaintiff “compete[] in the same arena” with the party that has allegedly received an illegal benefit? The District of Columbia and Maryland both do.

The District of Columbia owns an event space, the Walter E. Washington Convention Center, that competes with the Trump International Hotel just 10 blocks away. The convention center’s “Ballroom B” is roughly the same size as the Presidential Ballroom at the Trump hotel (14,000 square feet vs. 13,200 square feet), while the center’s Ballroom A and Ballroom C are only a bit larger. If you’re a foreign embassy looking to host a thousand-person event in downtown D.C., the Walter E. Washington Convention Center and the Trump International Hotel are two of your few options.

Maryland, through a state agency, holds a proprietary interest in an event space just outside D.C. that also competes with the Trump hotel. That venue, the Montgomery County Conference Center, is home to a 23,000-square-foot ballroom that has hosted embassy events in the past. Trump administration attorneys argued in a motion to dismiss that that conference center isn’t in competition with the President’s hotel because it’s in a suburban location and because the attached hotel only has an AAA three-diamond rating. (The Trump hotel has four diamonds.) But the conference center is a short ride on the Metro or by car from foreign embassies, and the Trump administration’s motion offers no support for the preposterous proposition that Article III standing turns on the difference between AAA three-diamond and four-diamond ratings.

Under competitor standing doctrine, these facts provide Maryland and the District of Columbia with a firm basis for their suit. To quote from an opinion by Judge Merrick Garland of the D.C. Circuit, plaintiffs “need not wait for specific, allegedly illegal transactions to hurt them competitively.” Here, the allegedly illegal transactions involve foreign governments paying President Trump to host events at his D.C. hotel, notwithstanding the constitutional rule that “no person holding any office of profit or trust under [the United States] shall, without the consent of the Congress, accept of any . . . emolument . . . of any kind whatever, from any king, prince, or foreign state.” The potential diversion of business from the plaintiffs and to the defendant’s hotel amounts to a constitutionally cognizable injury. 

A second basis for standing comes from the Domestic Emoluments Clause, which provides that the President “shall not receive . . . any . . . Emolument from the United States, or any of them.” That clause serves to ensure that no state can acquire disproportionate influence over the President through financial inducements. Maryland and the District of Columbia allege that Trump has violated this prohibition by accepting payments from at least seven states that, through an investment fund, own the Trump SoHo New York and pay the President’s company to run that hotel. The plaintiffs also point to evidence that Trump has accepted state government payments for stays at his D.C. hotel and for a conference at a Trump-owned resort in Florida. 

The Supreme Court has long held that states have standing to vindicate their own sovereign interests under constitutional provisions that specifically protect state sovereignty or that guarantee states an opportunity to influence national governance. For example, the Court held in 1992 that Massachusetts had standing to sue the Secretary of Commerce on the grounds that the Secretary, in tabulating the results of the 1990 Census, improperly shifted one Electoral College vote and one House seat from Massachusetts to Washington State. In a similar case involving the 2000 Census, the Court held that Utah had standing to sue for alleged violations of the Census Clause that led to a shift of one seat from it to North Carolina. The Census Clause, according to the Justices, guarantees that “comparative state political power” will “reflect comparative population, not comparative wealth,” and that the allocation of seats won’t be “skewed . . . for financial purposes.” States can go to court to enforce those guarantees.

A violation of the Domestic Emoluments Clause is much like a violation of the Census Clause: it deprives states of a fair opportunity to influence national governance. When one state or a subset of states offer emoluments to the President, it skews the governing process in contravention of the Clause’s specific prohibition on domestic emoluments. Just as states have standing to sue when their influence in the Electoral College is diluted by a violation of the Census Clause, they too have standing to sue when their influence over the President is diluted by a violation of the Domestic Emoluments Clause. (The District of Columbia, though not a state, is a “distinct political community” whose constitutional interest in an opportunity to influence the Executive is established by the 23rd Amendment.) 

Our brief ends by addressing the two other threshold questions. First, we point to a long line of Supreme Court cases recognizing that states have an equitable cause of action to enforce the Constitution’s structural provisions. And second, we argue that the plaintiffs comfortably satisfy the Supreme Court’s prudential “zone of interests” test. As we conclude:

Together, the Emoluments Clauses were intended to ensure that the federal government—and the President in particular—would be responsive to the interests of the states and their citizens, and not unduly influenced by “any king, prince, or foreign state” or by any U.S. state that sought to wield its wealth to its own political advantage. . . . The clauses also were intended to prevent the President from using his position of power in ways that enrich himself while making the states and their citizens worse off. The plaintiffs here argue that they and their citizens have been made worse off (financially and otherwise) because the President has used his position of power in ways that enrich himself, and that the President’s acceptance of domestic emoluments has pitted them against other states. Their interests in avoiding these harms come well within the zone of interests shielded by both Clauses.

Oral arguments are scheduled for January 25 before Judge Peter J. Messitte. We’re optimistic that Judge Messitte will deny the defendant’s motion to dismiss and will allow the plaintiffs to proceed to discovery. The District of Columbia and Maryland deserve to have their claims resolved on the merits.

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