The Emoluments Clauses and Akins “Voter” Standing

I was teaching standing last week as part of Administrative Law, and it seems to me that the Emoluments challenges have standing under Akins v. FEC.  The “standing” problem for private citizens challenging Trump’s emoluments suits is that person must have a “case or controversy,” which means they must have “standing,” some particular claim, rather than a general or abstract complaint. A plaintiff must have some “concrete and particular” injury, which is “actual or imminent,” not “conjectural or hypothetical.” The problem is that government officials often impact the general public and create diffuse problems, so that the harm is broad, not particular to a smaller set of people. In the 1970s and 1980s, standing too often was based on economic injuries, which seemed too quick to dismiss non-economic injuries to rights and democratic values.

By a 6-3 majority, the Supreme Court extended standing to voters to protect the democratic process, a very general harm, but nevertheless concrete enough to give them “voter” standing.

Here are the basics: The Federal Election Commission had not been treating AIPAC (the American Israel Political Action Committee) as a “political committee” under the relevant statute, which required disclosures of funding. The question is whether a group of voters — as voters — had standing to challenge the FEC. Justice Breyer answered yes for the Court, including Chief Justice Rehnquist and Justice Kennedy. Only Justices O’Connor, Scalia, and Thomas dissented.  Here is the most relevant passage for voters having standing to protect fundamental rights and the democratic process [citations omitted]:

[T]he Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance.The kind of judicial language to which the FEC points, however, invariably appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature-for example, harm to the “common concern for obedience to law.”

Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found “injury in fact.” See Public Citizen, 491 U. S., at 449-450 (“The fact that other citizens or groups of citizens might make the same complaint after unsuccessfully demanding disclosure … does not lessen [their] asserted injury”). Thus the fact that a political forum may be more readily available where an injury is widely shared (while counseling against, say, interpreting a statute as conferring standing) does not, by itself, automatically disqualify an interest for Article III purposes. Such an interest, where sufficiently concrete, may count as an “injury in fact.” This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. Cf. Lujan, supra, at 572; Shaw v. Hunt, 517 U. S. 899, 905 (1996). We conclude that, similarly, the informational injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.

The key here is to frame the Emoluments challenge as a challenge to the democratic process, concentration of political power through corruption, and the values of voting.  Akins was about money flowing to PACs and into politics. Emoluments are similar. “Taxpayer standing” remained narrow after Akins, as Scalia’s dissent emphasizes.  Akins involved a congressional statute that extended standing, and there is no such statute for Emoluments claims, but the decision and the dissent may suggest that the statute may not have been necessary for voter standing. The bottom line is that Akins standing offers another possible avenue for voters to challenge Trump’s emoluments.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor and Joseph Lipsitt Scholar at Boston University School of Law. He was at Fordham Law School 2013-2022. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century. View all posts by Jed Shugerman