Hardly had the DOJ’s motion been filed before the Trump administration faced new emoluments-related legal actions: On Monday morning, Brian Frosh and Karl Racine, the attorneys general of Maryland and Washington, D.C., respectively, filed a lawsuit against the president (with CREW serving as outside counsel), similarly alleging that his decision not to sell his businesses violates the Constitution. Then, on Wednesday, almost 200 Democratic senators and representatives announced that they, too, would be suing the president. And because these suits come from members of the government rather than from private citizens, the plaintiffs likely won’t have to establish the sort of direct harm that CREW needs—and that could make all the difference.
Both of these cases are on firmer ground, at least with regard to the question of legal standing. When it comes to states, there are two ways that Frosh and Racine could theoretically establish standing, says Jed Shugerman, a professor of law at Fordham University. The first, which Shugerman put forth on his website in March, runs through state courts: “Every state has a statute that gives the state attorney general the right to supervise corporate practices and to sue to dissolve a corporation if it engages in enough unlawful conduct,” he says, “because corporations are a creature of state law.” That means that the attorney general of any state where Trump has a business—in his blog post, Shugerman specifically points to New York, where the Trump Organization is based—could sue over unconstitutional, and therefore illegal, emoluments.
Frosh and Racine, who filed their suit at the federal level, aren’t following this exact path. Instead, their case rests on the principle that states have special standing to take on the federal government in court. “States represent a constitutionally vital institution,” says Shugerman. “If they can’t get into federal courts to protect their interests, then the federal courts aren’t doing their job.”
That special standing has distinct ramifications when it comes to the Emoluments Clauses—not only the Foreign one that CREW is contesting but also the Domestic Emoluments Clause, which holds that, aside from his official salary, the president “shall not receive ... any other Emolument from the United States, or any of them” while in office. According to Shugerman, the country’s founders “worried rich states could wield more influence by paying presidents directly. To avoid even the appearance of improper influence, they created a blanket rule: No emoluments from the states.”
Meanwhile, for the congressional Democrats’ legal action, precedent for suing the president can be found as recently as 2014, when the House—then as now under Republican control—sued the Obama administration over the Affordable Care Act, alleging that the president exceeded his constitutional authority in delaying implementation of the law’s employer mandate. In the ensuing case, House of Representatives v. Burwell, a federal judge determined that, because the Constitution establishes that only Congress has the power to tax and spend, the House did have standing to sue the president. (The case was not resolved under Obama; given the current administration’s stances on the Affordable Care Act, it is unclear how it will proceed from here.) Similarly, the Democrats assert in their suit that, because the Foreign Emoluments Clause requires that the president obtain the consent of Congress for any foreign payments he receives, they have not only the standing but the responsibility to take legal action against Trump.