A fresh-outta-the-gate lawsuit asks the courts to step in to prevent President Donald Trump from violating the Constitution’s Emoluments Clause through his business dealings. So, Josh Blackman asks, what’s its argument for standing under Article III? Basically, it’s that “because CREW is spending time on Trump’s emolument issue, they are not able to do things they would otherwise do.” That’s remarkably weak, even under what’s left of such liberal precedents as Havens Realty Corp. v. Coleman (1982), and unlikely to persuade the courts. The ACLU is biding its time while preparing a stronger eventual case for standing by looking for a hotel or other competitor that can plausibly claim to have lost business because of transactions involving the Trump Organization and foreign states that (it expects to argue) violate the clause. Even if litigants succeed in obtaining standing in some case, they will still face a daunting barrier in the state of the doctrine on justiciability and political questions, which could lead the courts to step back and defer to Congress as the appropriate branch to devise a remedy. Earlier here.
More: Jonathan Adler on Twitter comes to similar conclusions about standing — “It’s as if complaint is just a PR exercise” — and notes that Prof. Erwin Chemerinsky, who backs the new suit, argued earlier that Texas and other states, for lack of injury, had no standing to challenge the Obama administration’s DAPA immigration action. “If no standing because Texas had ‘choice’ not to issue drivers licenses, CREW has a choice not to worry about emoluments.” And from Derek Muller:
I wondered if Chemerinsky's suit v. Trump for an Emoluments Clause violation was justiciable, so I checked his Fed Jur book for answers: pic.twitter.com/xtv87pIQ9I
— Derek T. Muller (@derektmuller) January 22, 2017
I wondered if Tribe's suit v. Trump for an Emoluments Clause violation was justiciable, so I checked his Con Law treatise for answers: pic.twitter.com/wiCN4xW85p
— Derek T. Muller (@derektmuller) January 23, 2017