The U.S. Supreme Court denied cert to Members of Congress appealing the DC Circuit’s ruling that they lacked standing to sue President Trump for violating the Emoluments Clause.
Reuters (“U.S. Supreme Court ends Democratic lawmakers’ anti-graft lawsuit against Trump“):
The Supreme Court on Tuesday put an end to a lawsuit brought by congressional Democrats that accused President Donald Trump of violating anti-corruption provisions in the U.S. Constitution with his business dealings.
The justices refused to hear an appeal by 215 Senate and House of Representatives Democrats of a lower court ruling that found that the lawmakers lacked the necessary legal standing to bring the case that focused on the Republican president’s ownership of the Trump International Hotel in Washington.
The lawmakers accused Trump of violating the Constitution’s rarely tested “emoluments” clauses that bar presidents from taking gifts or payments from foreign and state governments without congressional approval. The lead plaintiff in the case is U.S. Senator Richard Blumenthal of Connecticut.
“Standing” in political disputes is a sufficiently arcane legal concept that I have no strong view on the merits. The fact that the DC Circuit ruled this way makes me reasonably confident that this wasn’t a partisan action by SCOTUS. The University of Georgia’s Matthew Hall makes a persuasive case that Congress should have standing but I’m sure I could find solid counter-arguments with more effort. Further, there are several SCOTUS rulings over the years denying Members of Congress from suing over policy disputes in that capacity, arguing that they can’t claim to speak for the institution as a whole.
Trump faces two similar lawsuits – one brought by an advocacy group and the other by the Democratic attorneys general of Maryland and the District of Columbia. Those cases likely would be dismissed as moot if Trump loses his Nov. 3 re-election bid, according to University of Richmond law professor Carl Tobia.
If Members of Congress lack standing, I don’t see how state AGs would have it. The more interesting case is the CREW suit, whose plaintiffs include DC hoteliers directly impacted by having to compete against a hotel owned by the President. But they have been winding there way through the system for three years and, as Tobia correctly notes, it becomes a moot issue if Trump’s tenure ends on January 20.
The Trump deal with the Old Post Office itself raises all manner of legal issues, none of which have been resolved. For all intents and purposes, then, the President is above the law if there is no judicial remedy that can be reached during his time in office.
The House could very well have impeached Trump for the Emoluments violations, at very least adding additional charges during the last impeachment process. Speaker Pelosi and the rest of the Democratic leadership thought the better of it. Alas, that, too is a moot point in that, unless the opposite party controls the Senate by wide margins, no President is likely going to be removed via that mechanism.
Again, if impeachment is a remedy only on paper and nobody has standing to sue for judicial relief, then the Emoluments Clause and other Constitutional restrictions amount to suggestions rather than the supreme law of the land. That’s decidedly less than ideal.
