//  8/14/17  //  In-Depth Analysis

The Trump Justice Department has told a federal district court in New York that it lacks jurisdiction to hear the claims of plaintiffs who are challenging the President’s violations of the Emoluments Clauses in Citizens for Responsibility and Ethics in Washington v. Trump. On Friday, we and 19 other scholars of administrative law, constitutional law, and federal jurisdiction joined an amicus brief explaining why the Trump administration’s arguments miss the mark. The brief, filed by New York attorneys Andrea Likwornik Weiss and Gregory Felt, is available here, and you can see a full list of amici in the appendix. As we conclude: “Under settled Supreme Court and Second Circuit case law, the plaintiffs easily clear the constitutional and prudential hurdles to the adjudication of their substantive claims.”

Our brief only addresses whether the district court should resolve the case on the merits; other amicus briefs (from legal historians, members of Congress, former government ethics officers, and a leading scholar of public corruption) address the substance of the plaintiffs’ claims under the Emoluments Clauses. That might make the arguments in our brief seem like a sideshow to the main act, but we think they’re more than that—for two reasons. First, the Justice Department spends more than half of the argument section in its motion to dismiss urging the district court to dismiss the case on justiciability grounds. That is, the administration’s primary strategy is to try to make the case go away before the district court considers the merits. Second, if the district court reaches the merits, it will confront a mountain of historical evidence indicating that payments to President Trump’s businesses from foreign and domestic government clients fall within the meaning of the word “emolument” as the founding generation would have understood it. Thus, if Trump loses the fight over justiciability, he will have a very tough time winning the next round.

But the Trump administration’s efforts to have the case tossed on justiciability grounds run into another sort of obstacle—clear-cut case law. Three of the plaintiffs (New York hotel owner Eric Goode, D.C.-based events booker Jill Phaneuf, and restaurant industry association ROC United) have claims that are justiciable under the well-settled doctrine of competitor standing. The Supreme Court’s competitor standing doctrine allows individuals and firms to challenge the legality of actions that provide a competitive advantage to other businesses in the same market. Goode, Phaneuf, and ROC United’s members all personally compete in the same arena as Trump’s hotels and restaurants, and thus have standing to sue Trump in order to stop his businesses from enjoying an illegal advantage.

Goode owns three hotels and three restaurants that are within a mile-and-and-a-half radius of Trump SoHo New York. In particular, his Bowery Hotel, four blocks north of Houston Street in Lower Manhattan, competes for government clients with Trump SoHo, which is four blocks south. In its motion to dismiss, the Justice Department attempts to define Goode out of the market in a positively Trumpian way: according to the motion, Trump SoHo and the Trump International Hotel in Midtown Manhattan “are AAA five-diamond hotels, whereas Goode’s hotels are not.” But as we note, “no court has ever suggested that constitutional standing hinges upon how the American Automobile Association rates hotels.” (Goode’s Bowery Hotel, by the way, is an AAA four-diamond hotel, and it ranks two spots above Trump SoHo on Condé Nast Traveler’s list of the top hotels in New York.)

ROC United, meanwhile, counts among its members The Modern, located three-and-a-half blocks from Trump Tower in Midtown. It very clearly competes with the comparably priced Jean-Georges at Trump Tower. The Justice Department’s motion to dismiss touts the fact that Jean-Georges was “awarded three Michelin stars” (The Modern has two), but once again, constitutional standing does not turn on the Michelin star hierarchy.

Phaneuf’s claim to competitor standing is similarly solid. She books embassy functions on commission for two D.C. hotels—the Kimpton Carlyle Hotel Dupont Circle and the Kimpton Glover Park Hotel—that vie for diplomatic clients with Trump’s new hotel nearby. The Justice Department’s argument that Trump’s D.C. hotel isn’t drawing diplomatic clients away from Phaneuf is further undermined by reports last week that the hotel has seen a surge of business since Trump took office. According to the Washington Post: “Business from foreign customers is brisk” at Trump’s hotel, and “groups with foreign interests have found that the location helps attract Washington star power.”

Our brief goes on to address the causation and redressability requirements under the standing test—requirements that Goode, Phaneuf, and members of ROC United easily meet. Their injuries are caused by the competitive advantage that Trump enjoys by virtue of his violations of the Emoluments Clauses, and their injuries would be redressable by a court order enjoining that illegal competition. The Justice Department argues in its motion to dismiss that an 1867 Supreme Court case, Mississippi v. Johnson, prohibits the district court from issuing an injunction against the President here, but that argument is a red herring. Mississippi v. Johnson says that courts cannot “enjoin the President in the performance of his official duties.” Yet as our brief notes, Trump “has no official duty to own and operate a global network of hotels, restaurants, and other businesses while he is President, and he certainly has no duty to accept emoluments from government clients while in office.”

The district court can proceed to the merits if any one plaintiff—Goode, Phaneuf, or ROC United—has standing, and we think that all three do. Our brief also goes on to address the court’s jurisdiction over the claims of a fourth plaintiff, Citizens for Responsibility and Ethics in Washington (CREW). In an unbroken line of cases dating back to 1993, the Second Circuit has held that an organization suffers a cognizable injury when the defendant’s conduct makes it more difficult and more costly for the organization to carry out its established mission. For the past 15 years, CREW has been devoted to monitoring and exposing the influence of money in politics. As we explain, CREW’s mission is more difficult “when the President receives payments from various governments through opaque channels.” The Justice Department’s motion to dismiss relies on a number of organizational standing decisions from other circuits, but the Second Circuit has acknowledged that its organizational standing doctrine is different from (and more plaintiff-friendly than) other courts’. And it’s the Second Circuit’s doctrine that matters here.

Our brief ends by arguing that the plaintiffs comfortably pass the prudential “zone of interests” test, under which plaintiffs must show that their injuries are among those protected by the laws they seek to enforce. As we note in the brief:

The Emoluments Clauses are designed to combat corruption: they prevent the President (or, in the case of the Foreign Emoluments Clause, any federal officeholder) from using his position of power in ways that enrich himself personally while making the citizenry worse off. The plaintiffs argue that they have been made worse off individually because the President has used his position of power for self-enrichment. Their interests thus are among those that the Emoluments Clauses secure. The Emoluments Clauses, moreover, serve structural purposes: their restrictions on the receipt of emoluments by the President from foreign, federal, state, and local governments undergird both the separation of powers and our system of federalism. Plaintiffs who suffer cognizable harms caused by violations of the Constitution’s structural provisions may enforce those provisions in court. See Bond v. United States, 564 U.S. 211, 223 (2011) (“If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.”).

One final note: We submitted this brief in part because we care about the outcome of the emoluments litigation. But we also care about constitutional standing and the zone-of-interests test—doctrines that affect many more cases beyond this one. The excessively narrow view of justiciability advocated by the Justice Department in its motion threatens to curtail access to federal court not just for these plaintiffs, but for others seeking to enforce constitutional and statutory guarantees. We hope that the district court in CREW v. Trump will decisively reject the Justice Department’s strained interpretation of Supreme Court and Second Circuit precedent.


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