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Donald Trump is having quite a week. Not only did the tax reform bill pass — likely saving him significant money — but a federal judge in New York has just rejected a lawsuit that challenges whether he’s impermissibly benefiting financially from being U.S. president.
The Citizens for Responsibility and Ethics in Washington (CREW) brought the lawsuit a few days after he became the country’s leader in January. The watchdog group alleged a violation of Article I, Section 9, Clause 8 of the U.S. Constitution, known as the “Foreign Emoluments Clause.” Specifically, the plaintiffs (which later would include those in the hospitality business competing with Trump’s hotels and restaurants) took issue with how foreign leaders were attempting to curry favor by booking stays at Trump’s D.C. hotel, how the Chinese granted Trump additional trademarks and even how foreign-government-owned broadcasters were paying for The Apprentice.
In reaction to the lawsuit, the Justice Department argued the Emoluments Clause doesn’t explicitly bar “private business pursuits” with CREW responding this was an “extreme view” of the law.
U.S. District Judge George B. Daniels won’t allow the case to proceed.
First, he cuts apart the plaintiffs’ standing for bringing the action.
Daniels rules that the hospitality plaintiffs have failed to show they’ve suffered an injury from increased competition with Trump’s businesses and thus have no Article III standing. The alleged speculative injury isn’t enough, the judge continues while adding the competitive injuries don’t fall within the zone of interests of the emoluments clause anyway.
“Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition,” states the opinion.
Daniels then says that CREW also lacks standing as a plaintiff. He rejects the group’s assertion of sufficient injury via a diversion of its resources to pay attention to Trump.
“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,” writes the judge. “As noted, the plaintiff organizations in the cases cited by CREW were all driven to expend resources they would not have otherwise spent to avert or remedy some harm to a definable class of protected interests — for example, the right of individuals to pursue housing free from discrimination, or of day laborers to solicit employment-caused by the defendant’s actions or policies. CREW, by contrast, 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.”
If that was the end of the decision, it might give hope to other plaintiffs like the attorneys general in Maryland and the District of Columbia who have brought their own case. (That’s in a different jurisdiction, so it’s possible a different federal judge could come to a different conclusion.)
Daniels rejects the lawsuit for the above reasons, but also offers a different, and perhaps even more important, procedural ground for dismissal.
Trump’s attorneys argued that a dispute over emoluments was best resolved through the “political process” rather than the courts, and this judge agrees.
“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,” writes the judge. “As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, 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.”
Daniels continues his exercise in judicial reservedness by framing this as a balance of power between Congress and the president and one “in which this Court should not interfere unless and until Congress has asserted its authority and taken some sort of action with respect to Defendant’s alleged constitutional violations of its consent power.”
In a decision that will likely be appealed, the judge concludes, “If Congress wishes to confront Defendant over a perceived violation of the Foreign Emoluments Clause, it can take action. However, if it chooses not to, ‘it is not [this Court’s] task to do so.’ This Court will not tell Congress how it should or should not assert its power in responding to Defendant’s alleged violations of the Foreign Emoluments Clause. In short, unless and until Congress speaks on this issue, Plaintiffs’ Foreign Emoluments Clause claims are not ripe for adjudication.”
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