Maryland, District of Columbia lack standing to sue president, says Nash

June 13, 2017

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Elaine Justice
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Emory Law’s Jonathan Nash, who has written extensively on the issue of standing and particularly intergovernmental standing, shares his thoughts on the lawsuit filed by the District of Columbia and State of Maryland charging President Trump with violating the U.S. Constitution’s Emoluments Clause. Nash serves as Robert Howell Hall Professor of Law.

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The complaint of Maryland and the District of Columbia in the Emoluments Clauses cases seek to invoke federal court jurisdiction. As part of federal court jurisdiction, the plaintiffs under the Constitution must establish proper standing to sue.

The most critical element of standing is for the plaintiff to show that he/she/it has suffered a sufficient “injury in fact.” Here, while many citizens might be frustrated with what they view as violations by the President of the Emoluments Clauses, the typical citizen would lack standing to sue because both (i) he or she has not suffered any real injury as a result of the violations, and (ii) to the extent there is an injury, it is one shared by all citizens, and the Supreme Court has recognized a general bar against standing to assert “generalized injuries” shared by all.

Maryland and the District here seek to invoke “sovereign standing” in order to proceed with suit. They describe injuries to their “sovereign, quasi-sovereign, and proprietary interests.” Each of these is subject to question.

First, for a sovereign interest, Maryland describes the Emoluments Clauses as inducement for Maryland (and other states) to join the Union. Yet such a claim could be made about any constitutional provision; were that sufficient to give rise to standing, then any state could bring suit for an alleged violation of any provision.

Maryland also alleges a sovereign injury to its tax income by virtue of the incentive for foreign states to make use of Trump properties in the District rather than comparable properties in Maryland. This is also a tough argument, since Maryland can be said similarly to lose tax revenue when foreign states make use of any properties in the District (not just Trump-owned properties); moreover, the other plaintiff, the District, can be said to benefit from the same decision making.

Maryland and the District claim quasi-sovereign injury—that is, injury on behalf of their citizens—by virtue of the incentive for foreign states to deal with Trump properties impeding the sovereigns’ ability to maintain a “level playing field” for their citizens. Here, however, it seems that some private citizens might have a more direct (and not generalized) injury, and indeed some workers in the hospitality industry have filed a suit alleging Emolument Clauses injuries.

Finally, Maryland and? the District allege proprietary and financial injury by virtue of government-owned properties losing business to Trump properties. Economic injuries are the most traditional, and most successful, bases for federal court standing. Once again, however, it seems that private actors could advance similar arguments.

While the Supreme Court has indicated that states enjoy “special solicitude” in the standing calculus, that argument holds less weight where private actors themselves could bring suit.

Finally, it bears noting that the plaintiffs assail not only the profits that the President allegedly receives from properties in the D.C. region and even in the United States, but also profits from far-flung sources—for example, international royalties from showings of “The Apprentice”. Even if the plaintiffs can establish standing as to some profit sources, they may face an uphill battle as to the profit sources that a more tenuous connection to the plaintiffs’ interests.

In short, the several of the arguments in favor of the standing of Maryland and the District to pursue these suits are subject to question.

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