Last week, the plaintiffs in CREW v. Trump amended their complaint in the lawsuit alleging that the President is in violation of the Foreign Emoluments and Domestic Emoluments Clauses. Of particular interest, the amended complaint added two additional plaintiffs to the law suit. While Take Care wasn’t around when CREW was first filed, my current constitutional law students can attest to my skepticism that CREW itself had standing. But the addition of the two new plaintiffs makes the case for standing much more straightforward than it was with the original complaint. Mike Dorf and Jon Taylor have explained on this blog why the new plaintiffs have standing, and Jed Shugerman and Matthew Stephenson have reached the same conclusion elsewhere.
One of the new plaintiffs, Restaurant Opportunities Centers (ROC) United, Inc., is an association of restaurants and restaurant employees, many of whom compete with Trump businesses. ROC also owns a restaurant that competes with Trump’s businesses.
The other new plaintiff is my (personal) favorite—Jill Phaneuf. Phaneuf works for a hospitality company, where her job is “to book embassy functions, political functions involving foreign governments, and functions for organizations that are connected to foreign governments” at two non-Trump hotels in Washington, D.C. Phaneuf is compensated based on the number of bookings she makes.
The reason Phaneuf is my favorite new plaintiff is because of an awesome tidbit that is included in paragraph 58 of the amended complaint. The Trump International Hotel has hired a “director of diplomatic sales,” who performs Phaneuf’s same job for the Trump International Hotel. That is, this person’s entire job is to make bookings with foreign states, their diplomats, and their agents. For convenience I’ll call this person the “emolument granter”; he or she is Phaneuf’s direct competitor.
ROC and Phaneuf have standing under the “competitor” theory of standing that Mike, Jon, Jed, and Matthew have described. Standing requires a plaintiff to show that she has been injured (in fact); that her injuries are caused by the defendant’s conduct; and that her injury is likely redressable by a court decision in her favor. “Competitor” standing refers to the many cases in which the Supreme Court has made clear that a plaintiff whose business faces increased competition because of the defendant’s actions has standing—that is, the money you might stand to lose from increased competition qualifies as an injury; that injury is understood to be caused by whatever increases the competition; and it is accepted that a favorable court decision that takes away increased competition would redress your injury.
It takes a lot of courage to publicly challenge the President’s massive conflicts given how he and his supporters have treated journalists and the accusers who challenge him. So a big high five to ROC and Jill Phaneuf for their decisions to join CREW. We’re rooting for you (at least I am; not totally sure whether some of the standing critics want this suit to go away or whether they want it to go forward but think it can’t).