The Emoluments Clause and Standing: Who Has the Right to Sue?

October 15, 2018
 
Jennifer Pahre

Jennifer Pahre

University of Illinois College of Law

Two federal judges have now ruled that cases filed against President Donald Trump may proceed for alleged violations of the United States Constitution’s Emoluments Clause. One part of the Emoluments Clause prohibits presidents from accepting gifts from foreign interests without Congressional consent.  The latest ruling came in a case filed by 200 Democratic members of Congress, who say the clause was violated because the President has been receiving business benefits from foreign governments.

The judge ruled that the lawsuit can proceed because the members of Congress have “legal standing” to sue.  This means the court found they are the correct persons to bring the action.  The notion is that if you want to pursue a legal action, you must have suffered the harm that you’re complaining about. 

So, if my cousin is injured in an automobile accident, she may sue for her injuries.  But not her neighbor, not her friend, and not me.  We have not suffered the loss, and we are not the right people to prosecute the claim for damages.

In cases involving generalized violations of Constitutional rights, standing can be tricky.  Let’s say I think the government is applying certain laws unfairly.  I’m a taxpayer, and my money supports the operation of the government.  So, may I sue? 

In a 1923 case, Frothingham v. Mellon, the Supreme Court found that a taxpayer does not have standing to sue the federal government if his only injury is an anticipated increase in taxes.  If the taxpayer claims that existing funds were being improperly managed, the suit can proceed. 

However, later cases have consistently found that the federal government’s actions are too far removed from individual tax returns for any injury to a taxpayer to be traced to tax revenues.  So, taxpayer standing has become hard to achieve.

The Supreme Court has also determined that someone does not have standing to challenge the constitutionality of a statute unless they were very directly affected by it.  In a 1992 case, Lujan v. Defenders of Wildlife, the plaintiffs were a group of American wildlife conservation and environmental organizations who claimed that the government’s actions were violating the Endangered Species Act.  But their case stalled out on the issue of standing.  The Supreme Court found that the plaintiffs could not claim that they had suffered a tangible and particular harm different from the harm others had sustained.

This, of course, leaves us with an important question: who may sue when violations of laws occur that harm the public as a whole, but no single person in particular?  As Supreme Court Justice Joseph Story said many years ago in Webb v. Portland Manufacturing Company, “wherever there is a wrong, there is a remedy to redress it.”  But to get the remedy, there must be a lawsuit, and that requires a plaintiff, and she must be the right plaintiff.

So, it’s good that our courts are confirming that members of Congress have standing to sue in cases involving potentially unconstitutional emoluments.  Important cases should be heard and resolved on the merits, and not dismissed due to the absence of plaintiff standing.  This is especially important where no better plaintiffs can be found.