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Maryland, D.C. Lack Standing to Challenge Trump in Emoluments Case

By Christopher Coble, Esq. on July 16, 2019

If the Emoluments Clauses "give no rights and provide no remedies," who can enforce them against the President of the United States? Not states, according to the Fourth Circuit, even if they're home to properties owned by the president.

The court dismissed a suit brought by the attorneys general of Washington, D.C., and Maryland that claimed Donald Trump continues to accept money from state and foreign governments via his Washington hotel and business empire, therefore violating the domestic and foreign emoluments clauses of the U.S. Constitution. "The District and Maryland's interest in enforcing the Emoluments Clauses is so attenuated and abstract that their prosecution of this case readily provokes the question of whether this action against the President is an appropriate use of the courts, which were created to resolve real cases and controversies between the parties," wrote Judge Paul Niemeyer.

Not a Case, Not a Controversy

While the Fourth Circuit conceded that its grant of Trump's writ of mandamus was unusual, it called the suit itself "an extraordinary one":

First, the suit is brought directly under the Constitution without a statutory cause of action, seeking to enforce the Emoluments Clauses which, by their terms, give no rights and provide no remedies. Second, the suit seeks an injunction directly against a sitting President, the Nation’s chief executive officer. Third, up until the series of suits recently brought against this President under the Emoluments Clauses, no court has ever entertained a claim to enforce them. Fourth, this and the similar suits now pending under the Emoluments Clauses raise novel and difficult constitutional questions, for which there is no precedent. Fifth, the District and Maryland have manifested substantial difficulty articulating how they are harmed by the President’s alleged receipts of emoluments and the nature of the relief that could redress any harm so conceived. Sixth, to allow such a suit to go forward in the district court without a resolution of the controlling issues by a court of appeals could result in an unnecessary intrusion into the duties and affairs of a sitting President. Accordingly, not only is this suit extraordinary, it also has national significance and is of special consequence.

"[T]he District and Maryland's interest in constitutional governance is no more than a generalized grievance," the court's three-judge panel reasoned, "insufficient to amount to a case or controversy within the meaning of Article III."

Every Citizen's Interest in Proper Application of the Constitution

If the District of Columbia, home of the president's Trump International Hotel, lacks standing to enforce the Constitution's Emoluments Clauses, it's difficult to see who or what could. Under the Fourth Circuit's distinction between "concrete" and "hypothetical" injuries, merely getting to the discovery stage on an emoluments claim could be impossible:

And the Supreme Court has "consistently held that a plaintiff raising only a generally available grievance about government -- claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large -- does not state an Article III case or controversy."

The Maryland and D.C. attorneys general, however, vowed to continue their legal challenge, claiming the court "failed to acknowledge the most extraordinary circumstance of all: President Trump is brazenly profiting from the Office of the President in ways that no other President in history ever imagined and that the founders expressly sought -- in the Constitution -- to prohibit."

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