//  4/28/17  //  Commentary

Yesterday I explained why some of the standing skeptics are defining the injury to the new plaintiffs in CREW in the wrong way. Today I wanted to analyze some of the other ways the standing skeptics have tried to distinguish the cases that suggest the new plaintiffs in CREW have standing.

On Twitter, Andy Hessick responded to the competitor standing cases by saying they were “not so different *except* standing is always tougher against [the] government per Lujanv. Defenders of Wildlife. I’m less sure that’s what Lujan stands for, or at least unclear how broadly that principle cuts. Lujan distinguished cases where “a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else” from cases where “the plaintiff himself an object of the [governmental] action (or forgone action).” However, both the competitor standing cases and CREW (with the addition of the two plaintiffs) fall in the former category—in both competitor standing cases and CREW (which is now a competitor standing case), “causation and redressability … hinge on the response of the regulated (or regulable) third party to the government action or inaction.” (Those are Lujan’s words). If that wasn’t a bar to standing in the competitor injury cases, it’s not a bar to standing in CREW, which is now a competitor injury case. Many of the competitor injury cases involve suits against the government that challenge the government’s regulation (or lack thereof) of third parties.  All of the cases I cited yesteday do.

Lujan held that “a plaintiff raising only a generally available grievance about the government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws” does not suffice for standing. (Emphases mine--Lujan elsewhere described the plaintiffs’ interest as the “interest in proper administration of laws.”) But that’s not the injury the (new) CREW plaintiffs are asserting. Moreover, the Court’s recent decision in Spokeo v. Robins applied Lujan’s standing standard—the same standing inquiry and same standing rules that Lujan applied in a suit against the government—to a suit brought by one private party against another private party. (I was personally rooting for the Court to adopt Andy’s view that Lujan’s standing requirements don’t apply, or apply less, to suits between private parties, but only Justice Thomas’s sole concurrence indicated he was receptive toward that view.)

Additionally, even if Andy is right that “standing is always tougher against [the] government per Lujan,” Lujan and the other case Andy invoked (Allen v. Wright) involved challenges to the programmatic structure of a government program and policy. The lawsuit in CREW does no such thing. Lujan involved a challenge to the way the Secretary of the Interior had interpreted a federal statute that directed federal agencies to consider the environmental effects of federal projects. Allen v. Wright involved a challenge to the Internal Revenue Service’s administration of the tax code (specifically, its allotment of tax breaks). Lujan and Allen described the challenges in those cases as challenges to “the particular programs agencies establish to carry out” the statutes the agencies administer. Even accepting the idea that challenges to the government’s implementation of governmental programs might be disfavored, CREW’s lawsuit involves no such challenge. CREW’s lawsuit involves a challenge to the President using the office of the Presidency to channel money into his personal businesses and bank account which are not part of the government or its programs or policies and should frankly be nowhere near them.

Andy’s post also noted that Allen v. Wright relied on the idea that “causation and redressability … hinge on the response of [a] third party to the government action or inaction” when it held that the plaintiffs in that case lacked standing. In Allen,  the parents of school children claimed their children were injured from the IRS giving tax breaks to schools that discriminate on the basis of race. Allen described the plaintiffs’ injury as the plaintiff “children's diminished ability to receive an education in a racially integrated school.”

But Allen largely treated the plaintiffs’ injury as their children’s actual ability to receive an education in a racially integrated school. Thus for example, Allen reasoned that it was unclear “whether any given parent of a child attending … a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status” and whether “a large enough number of the numerous relevant school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools.”

In other words, Allen rejected the plaintiffs’ standing by treating the plaintiffs’ injury as their children’s ability to receive an education at a racially integrated school; the injury in that case wasn’t about an opportunity to (fairly) compete or a competitive disadvantage and couldn't be fairly described as such. But the opportunity to (fairly) compete is the new plaintiffs’ injury in CREW, and that makes a significant difference with respect to causation and redressability. Because the injury is a competitive disadvantage or the loss of an opportunity to (fairly) compete, that injury is caused by the President’s financial incentives in his businesses (which give the President’s businesses a competitive advantage over the plaintiffs) and would be redressed by a decision that forced the President to sever his financial interest in and oversight of his businesses (which would remove the competitive advantage the President’s businesses have over the new plaintiffs).

Additionally, the plaintiffs in Allen failed to establish that they themselves would benefit from the IRS denying tax breaks to racially discriminatory schools because they didn’t show that any schools near them received tax breaks and were racially discriminatory. Allen explained that “[t]he diminished ability of respondents' children to receive a desegregated education would be fairly traceable to unlawful IRS grants of tax exemptions only if there were enough racially discriminatory private schools receiving tax exemptions in respondents' communities.” But there weren’t. As Allen explained, the plaintiffs’ claims involved “numerous third parties (officials of racially discriminatory schools receiving tax exemptions and the parents of children attending such schools) who may not even exist in respondents' communities.” It was unclear, in that case, “how many facially discriminatory private schools are in fact receiving tax exemption.” (There’s no similar ambiguity in CREW’s case—the Trump hotel hired a person whose sole job is to facilitate the President’s receipt of emoluments, and the complaint lists several specific examples.) And in footnote 23, Allen noted that “none” “of the schools identified in respondents’ complaint” as “directly receiving a tax exemption is alleged to be racially discriminatory.”

To wrap up—standing is one of the more amorphous doctrines in constitutional law, and that’s saying something. But the better reading of the relevant cases is still that the new plaintiffs in CREW have standing.

None of this is to say that a court will ultimately hear this case on the merits.  As Matthew Stephenson and others have noted, there are other potential obstacles to the lawsuit besides standing.  But standing, at least, should not be an obstacle given the addition of the new plaintiffs.

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