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Don’t be a Potted Plant and Other Takeaways from CREW v. Trump

Judge Daniels of the U.S. District Court for the Southern District of New York has issued this opinion (hat tip: Eric Columbus) dismissing the Emoluments Clause lawsuit spearheaded by Citizens for Ethics and Responsibility in Washington (CREW). The court found that neither CREW nor its co-plaintiffs (individuals and businesses in competition with hotels and restaurants owned by the Trump Organization) had standing to sue President Trump for allegedly violating the Foreign and Domestic Emoluments Clauses.

Much of the court’s analysis is focused on explaining why the plaintiffs have not suffered legally redressable injuries from the alleged constitutional violations. Professor Jonathan Adler has a good summary of the court’s reasoning here, and I have nothing in particular to add with respect to that aspect of the opinion. I do, however, have a few additional observations.

First, while the court makes clear (see op. at 2, n.1) it is not addressing the merits of the case, I think one can sense some skepticism from the court about the plaintiffs’ theory of liability. The gravamen of their claims is that Trump’s “’vast, complicated and secret’ business interests are creating conflicts of interest and have resulted in unprecedented government influence in violation of the Domestic and Foreign Emoluments Clauses of the United States Constitution.” Op. at 1.

As the court notes, however, nothing in the Constitution prevents Trump from operating an extensive business empire that competes with CREW’s co-plaintiffs as to non-government business. Op. at 17. To the extent the Constitution might be construed to apply to business transactions with governmental entities, the effect on the Trump Organization would be largely incidental. As the court points out, even in that circumstance the Constitution would not prohibit the Trump Organization from doing business with foreign (or state) governments; it would simply prevent Trump from personally accepting income or profits from these transactions. Op. at 14 & n.3. Trump thus can fix any constitutional problem if he has not already, and Congress can waive any constitutional problem under the Foreign Emoluments Clause (FEC) anyway. Op. at 15. In short, Judge Daniels effectively rejects the notions that the Constitution prohibits the Trump Organization from operating during the Trump presidency or that Trump needs to divest himself of all interest in his businesses.

A second and more important takeaway from the opinion relates specifically to the FEC. Judge Daniels did not merely hold that these particular plaintiffs lack standing to sue. Instead, he found that any claim under the FEC would be non-justiciable. Op. at 25-26. As the court explains:

Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the [FEC] makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the [FEC], Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power. If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant’s conduct. As such, this case presents a non-justiciable political question.

Op. at 26 (emphasis added).

In addition, the court found that plaintiffs’ claims were premature because Congress itself had taken no action with regard to Trump’s alleged violations of the FEC. (One might add that Congress had little opportunity to do so, given that CREW filed its lawsuit on the first day of the administration.) The result might be different, the court implied, if in the future Congress were to find Trump’s activities required congressional consent. Op. at 27-28. But it is not the court’s role to tell Congress what to do or “how it should or should not assert its power in responding to Defendant’s alleged violations of the Foreign Emoluments Clause.” Id.

In a footnote, Judge Daniels underscored this point: “Congress is not a potted plant. It is a co-equal branch of the federal government with the power to act as a body in response to Defendant’s alleged Foreign Emoluments Clause violations, if it chooses to do so.” Op. at 28 n.8.

Needless to say (or, rather, as I have already said here and here), I am in strong agreement with the court’s approach to justiciability of the FEC claim. The House and/or Senate should give serious consideration to filing an amicus brief defending the court’s decision if and when CREW appeals to the Second Circuit.

Congress can also justify Judge Daniels’ confidence by demonstrating that it is not in fact a potted plant. It should initiate a review of Trump’s business interests to ensure there are adequate safeguards to prevent violations of the FEC or any other unacceptable conflicts of interest. Upon reflection, I think the best way to conduct a serious, nonpublic and nonpartisan review of this matter would be to entrust it to the GAO, possibly under the auspices of the Joint Committee on Taxation.

Finally, I must note that Judge Daniels makes no mention of the theory, advanced by Professor Tillman as amicus curiae, that the FEC is inapplicable to the president, other than to note that “[f]or purposes of this motion, Defendant has conceded that he is subject to the Foreign Emoluments Clause.” Op. at 6 n.2. Make of this what you will, but perhaps it suggests the court was not bowled over by Tillman’s theory? As an exercise in reading tea leaves this seems as least as plausible as Tillman’s apparently inferring from these orders in District of Columbia v. Trump (another emoluments case) that Judge Messitte is interested in hearing more about his theory. But we will see.

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