Selling the presidency
When the president of the United States violates the Constitution there must be a way for a federal court to hear the case and provide a remedy. Three different lawsuits have been filed against President Trump claiming that he is violating the emoluments clauses of the Constitution by receiving unlawful payments or other benefits from foreign governments and from the United States.
Trump’s position is that the federal courts can hear none of these suits because no one has “standing” to sue him for these constitutional violations. But that can’t be right: It cannot be that the president can violate the Constitution with impunity and no court has the authority to hold him accountable.
Article I, Section IX of the Constitution prevents any person holding a federal office from receiving a “present” or “emolument … of any kind whatever” from a foreign state. This was meant to limit foreign influence in the U.S. by broadly forbidding elected or appointed officials from being obligated to another government.
Trump, because he hasn’t removed himself from his business empire, is constantly on the receiving end of benefits from foreign states. Among the most notable examples: Trump has more than 100 registered or provisionally approved trademarks in China, including six that were requested a year ago and gained preliminary approval last week, and his hotels and restaurants are being booked by foreign representatives whose governments foot the bill.
The Constitution also limits the president’s ability to enrich himself domestically. Article II, Section I says the president “shall not receive… any other emolument from the United States” except the salary paid for serving in the office. But Trump is constantly receiving such emoluments because the federal government leases property in some of his buildings.
I am co-counsel for the emoluments suit filed by the public interest group Citizens for Responsibility and Ethics in Washington. The plaintiffs now also include an association of restaurants that can show they have been hurt by foreign governments choosing to use Trump facilities. Maryland and the District of Columbia have also filed suit, alleging that businesses in their jurisdictions are hurt by such constitutional violations, and so have more than 200 members of Congress. The Constitution says that emoluments from foreign governments may not be received “without the consent of the Congress.” Because Congress has not given its approval for the money flowing into the president’s business interests, the latter suit seeks to prevent that flow until and unless it consents.
The president’s position is that none of these plaintiffs fits the legal criteria of “standing ” — that is, they can’t claim to have been personally injured so they cannot sue. But it is hard to imagine who would have standing if not these plaintiffs. Accepting Trump’s argument would effectively mean that no one would ever be able to sue over violations of the emoluments clauses.
Long ago, in Marbury vs. Madison, the Supreme Court explained that the Constitution exists to limit the actions of the government and government officers, and these limits are meaningless if they cannot be enforced. Trump’s assertion that no one can sue him based on the emoluments clauses would render these provisions meaningless.
Nor is it sufficient to say that Congress, rather than the courts, should enforce these provisions.
The point of the suit by members of Congress is to establish that they should not have to act to prohibit the president from getting benefits, but that their approval, which has not been given, is what is required to fulfill their oversight role in Article II, Section I. Of course, even if these plaintiffs are right, with Republicans in power in both the House and Senate, it is doubtful whether Congress would stand in the president’s way. Constitutional violations should not be tolerated just because the elected branches of government agree to them.
Moreover, beyond Congress’ approval or disapproval, it is not clear what the elected branches could do if a president persists in receiving out-of-bounds payments, short of impeachment. It cannot be that such an extreme measure is the only way to enforce the law.
The president’s argument about standing should not prevail. Citizens for Responsibility and Ethics in Washington has had to divert its resources and efforts to combat these constitutional violations, an injury the Supreme Court has recognized as sufficient in other cases. The lawsuits involving restaurants and hotels document that they have lost business to Trump properties, which also hurts the state and local governments where they are located. Members of Congress have had their power nullified.
All too often in recent years, the Supreme Court has closed the federal courts to injured individuals by restricting the definition of who has standing to sue. Now, more than ever, it is imperative that the federal courts be available to enforce the Constitution. What is at stake is the central tenet of our democracy: No one, not even the president, is above the law.