Thursday, December 21, 2017

CREW's Emoluments Case Kicked for Lack of Standing

A federal judge ruled today that CREW and other plaintiffs lacked standing to sue President Trump for Emoluments Clause violations. We posted most recently on the case here.

The ruling ends the case, unless and until it's appealed.

The case arose when CREW and other plaintiffs (including hotel- and restaurant-owners who compete with Trump properties) sued the President for accepting gifts and emoluments from foreign and domestic sources without congressional approval, in violation of the Emoluments Clause. The plaintiffs sought declaratory and injunctive relief.

The government argued that the plaintiffs lacked standing and that the case should be dismissed. Today Judge George B. Daniels (S.D.N.Y.) agreed.

The court said the "hospitality plaintiffs" lacked competitive standing, because they didn't sufficiently allege that President Trump's Emoluments Clause violations caused their injuries (lack of business due to competition with Trump properties) and that a successful suit would redress those injuries. The court explained:

Here, the Hospitality Plaintiffs argue that Defendant has adopted "policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection." Yet . . . it is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's "incentives" or instead results from government officials' independent desire to patronize Defendant's businesses. Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President. As such, despite any alleged violation on Defendant's part, the Hospitality Plaintiffs may face a tougher competitive market overall. Aside from Defendant's public profile, there are a number of reasons why patrons may choose to visit Defendant's hotels and restaurants including service, quality, location, price and other factors related to individual preference. Therefore, the connection between the Hospitality Plaintiffs' alleged injury and Defendant's actions is too tenuous to satisfy Article III's causation requirement.

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[Moreover,] Plaintiffs are likely facing an increase in competition in their respective markets for business from all types of customers--government and non-government customers alike--and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition. . . .  [T]he Emoluments Clauses prohibit Defendant from receiving gifts and emoluments. They do not prohibit Defendant's businesses from competing directly with the Hospitality Plaintiffs.

The court went on to hold that the Hospitality Plaintiffs weren't within the zone of interests protected by the Emoluments Clause.

The court also held that CREW lacked standing, because its alleged harm (diversion of resources to monitor and respond to the President's Emoluments Clause violations) wasn't sufficient. "Here, CREW fails to allege either that Defendant's actions have impeded its ability to perform a particular mission-related activity, or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct. CREW . . . may have diverted some of its resources to address conduct it may consider unconstitutional, but which has caused no legally cognizable adverse consequences, tangible or otherwise, necessitating the expenditure of organizational resources."

Finally, the court ruled that the case raised a nonjusticiable political question (because of the Emolument Clause's textual commitment to a coordinate branch of government, Congress) and that the case wasn't ripe (because "a conflict between two coordinate branches of government . . . has yet to mature").

http://lawprofessors.typepad.com/conlaw/2017/12/crews-emoluments-case-kicked-for-lack-of-standing.html

Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink

Comments

There's a pretty good critical analysis of the competitor standing bit over at the Take Care blog: https://takecareblog.com/blog/on-the-ripeness-of-potted-plants-and-other-non-sequiturs

Posted by: Steven J. Uhrich | Dec 23, 2017 6:19:28 AM

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