Hebrew poetic justice: “Chaffetz Chashud” means “suspicious package,” maybe a bomb. We’re all waiting for @jasoninthehouse’s “suspicious package” and/or bombshell. He’s been suspicious and a time bomb this whole time anyway. (H/T @emilynussbaum: “During Passover, it’s traditional to remove all the Chaffetz from the House.”)
As I’ve posted before, a challenge to the Emoluments suit against Trump is “standing,” the requirement that a plaintiff show an actual injury to be able to get into court at all. Tonight’s breaking news is excellent news for the suit’s first procedural steps. CREW has added two new plaintiffs: a non-profit, Restaurant Opportunities Centers United, which represents over 25,000 restaurant workers and over 200 restaurants; and Jill Phaneuf, who books events for two Washington hotels. Both have solid claims that they are injured by President Trump’s emoluments, using his office as an illegal market advantage over his competitors by drawing business from foreign entities and from federal and state spending.
In order for a plaintiff to sue in federal court, they must have a “case or controversy” as required by Article III of the federal Constitution, and thus they must have “standing” through an injury in fact. A plaintiff must have some “concrete and particular” injury, which is “actual or imminent,” not “conjectural or hypothetical.” Federal courts have often differentiated concrete and specific injuries from abstract and general claims of injury. The CREW lawsuit initially faced an uphill battle on standing, because as a non-profit, it had an indirect injury claim that stretched the interpretation of past precedents (see Havens). I argued that voters had standing to challenge emoluments as an injury to the democratic process, but CREW’s new plaintiffs have an even stronger argument: economic harm from unfair competition.
A 1970 Supreme Court case, ADPSO v. Camp (“Data Processing”), is often credited with establishing the “injury in fact” requirement for standing. ADPSO represented data processing companies, and it was challenging a ruling by a part of the executive branch (the Comptroller of the Currency) that banks may make data processing services available. The data processing companies were not directly affected by the ruling, but the banks would be able to compete with the data processing companies, and that competition was enough to establish an injury in fact. The Court did note that ADPSO presented more than just speculation about future competition, that it identified two customers being targeted for competition by banks. In the case of emoluments, it is probably sufficient for these two plaintiffs to show that their hotels directly compete with the Trump hotels for specific business. In antitrust cases, an injury through an unfair general competitive advantage is enough for standing. The same should be true here. They can certainly point to this infamous story of the Kuwaiti Embassy cancelling its huge event at the Four Seasons and suddenly rescheduling it at Trump’s new DC hotel. Two DC restaurants are making a similar claim of unfair competition.
ADPSO also established a “zone of interests” test: “The question [is] whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Later cases clarified that this test “is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.” The question is more abstractly about the interests protected. Clarke v. Securities Industry Association, 479 U.S. 388 (1987); NCUA v. First National Bank & Trust Co., 522 U.S. 479 (1998). Here, there is no need to show evidence that the Constitution’s framers and ratifiers meant to benefit hotels, only that they were interested in guarding against corruption, which creates unfair competition and unfair markets.
Two other requirements for standing are causation (the plaintiff’s injury must be “fairly traceable” to defendant’s illegal behavior) and redressability (the court must be able to redress or remedy the injury). Both plaintiffs meet these requirements at this stage: they can argue that the office of the President draws business away (as emoluments) from these hotels, and they can argue that an injunction to stop taking such business would end the harm.
As a side note on standing and state attorneys general, the quo warranto strategy in state court does not have these standing problems, because the state statutes give the state attorneys general “statutory standing,” specifying that they have the power to challenge the Trump LLCs’ participation in emoluments. In some states, citizens are given statutory standing to raise such claims. I have argued that they may have “voter” standing under Akins v. FEC, as well.
Update: Jonathan Adler asks, “What is the precedent for enjoining third party to cure injury?” His point is that the suit is against defendant President Trump, but he assumes the injunction is only against the Trump Corporation. 1) The injunction could be directly against Trump to divest and/or sell the assets and put them into a blind trust. 2) The injunction could be against the Trump Corporations, because the corporate entities are the “alter ego” of Trump the actual human, and corporate law allows courts to “pierce the corporate veil” in these kinds of cases. Trump is the sole beneficiary of the “trust,” he can revoke the trust at will at any time to retake direct control, and he can take profits from the trust personally at any time.
There is no immunity, because the Emoluments Clause says “No person holding an office of trust…”, meaning that liability under the emoluments clause is personal, not official.
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.
I was paying more attention to other stories about tyrants killing Jews this week, so I’m just catching up now to new stories. Folks, Spicer was not actually denying the Holocaust. Was that actually a mainstream claim?
I was quite relieved to read this NY Times story that Steve Bannon reads solid American history, summarized here. Their historical theory is that American history moves in predictable 80-year cycles of crisis and renewal, from the revolution to the Civil War to World War II to the present Trumpian moment. Totally. (And it just happens to be popular in Leninist and Alt-Right circles).
So this is my chance to share my bar mitzvah theory of American history, a turning point every 12 or 13 years (it can become a “bat mitzvah” theory after the 19th Amendment in 1920, but I’m not sure America is ready for that even today). Trust me, it ends with a progressive president, single payer health care, and world peace by 2021.
1756-63: the Seven Years War/”French and Indian” War that leads to the Revolution.
1774-75: The Intolerable Acts and Lexington and Concord start the Revolution (1776 is so overrated).
1787: The Constitutional Convention
1800: The Jeffersonian revolution and the first-ish peaceful democratic transition in power in human history
1812-14: The War of 1812
1824: Andrew Jackson wins a plurality of the Electoral College, but Henry Clay helps JQ Adams “steal” the presidency. The beginning of the “Jacksonian revolution”?
1837: The Panic of 1837 destroys the economy, and transforms state banks and state constitutions. See my book.
1846-1850: Mexican American War to the Compromise of 1850, a turning point in slavery politics.
1861: The Civil War
1873: The Colfax massacre and the real end of Reconstruction
1886: Haymarket! May Day! Or for Admin nerds: 1887, Congress creates the ICC. See my article.
1898: The Spanish-American War on the rise of American imperialism
1912: The election of Woodrow Wilson, ushering in a wave of progressive legislation.
I could keep going, but why not just write a crazy book about it, and see if a crazy presidential advisor will buy it?
It’s hard for me to get morally outraged about Gorsuch’s academic sloppiness when there are so many stronger reasons to oppose his nomination. I can’t say with a straight face that this changes the merits (and really, the demerits) of his nomination. I still care much more about his callous approach to judging (as I wrote about the frozen trucker case) and the likelihood of his non-mainstream views on gay marriage. His answers to Sen. Klobuchar about the special education decision — that he “was bound by precedent” — raised concerns about his legal writing and his thinking about precedent. He was overly eager to signal that he was bound by precedent (ahem, Roe?), but don’t bet on him to follow through, especially when he was not bound to add the word “merely” to water down a special education standard, when the case he was citing did not engage in enough analysis or application of the standard to justify Gorsuch’s minimizing that right. It was also an evasive answer, dodging the substance with an exaggerated claim about precedent.
His evasiveness may not be everyone’s biggest worry, but he was dramatically more evasive than recent nominees, and it establishes a better procedural reason for the procedural filibuster. In 2005, I wrote an op-ed in the Boston Globe, and it may be more relevant for Gorsuch:
“The filibuster is designed to keep debate open procedurally, but the threat of a filibuster should be used to foster debate substantively. The Senate Democrats should announce that they will filibuster a nominee who evades questions, answers questions inconsistently, or seems to be dishonest. If the nominee prevents debate from beginning, the senators should block it from ending.”
“But the flip side is that if the nominee candidly espouses views that seem extreme, the Senate Democrats should commit themselves to defeat the candidate only by an up-or-down vote. If they cannot muster 51 votes after an open hearing, then either the candidate is not so extreme or they need to campaign on these issues in the next election and win.”
The breaking news is that the Democrats have 41 votes to filibuster Gorsuch. I am happy to see the Democrats finally fighting back, but I am worried that their timing and a lost opportunity.
Don’t get me wrong. I have been following the Gorsuch nomination closely, maybe too closely for my own good. I have blogged about why the Democrats should filibuster for long-term strategic reasons. (Getting rid of the filibuster could be beneficial when the Democrats are back in the White House ASAP). I also wrote about his “frozen trucker” dissent in Slate, and how it suggests that Gorsuch may be a callous ideologue. Given how he evaded questions more than even the recent round of Supreme Court nominees, we don’t have a lot to go on, but his dissertation’s signals on gay marriage and fetal personhood, the “frozen trucker” case, and other parts of his judicial record raise significant concerns that he is not a “meanstream” conservative, but that he is probably to the right of late Justice Scalia. He is not an immediate threat to Roe v. Wade (he’d be the fourth vote to overturn it, not the fifth). But my issue is the death penalty and criminal defendants’ rights, and for those isues, he is more likely the fifth vote against my biggest concerns. Under other circumstances, I would agree with voting “no,” and in the past, I have suggested that filibustering a nominee is appropriate when the nominee is too evasive: if the nominee obstructs the confirmation hearing, the Senate should obstruct the confirmation. On top of that, Garland, Garland, Garland. Or more appropriately, Obama, Obama, Obama.
I have been going back and forth in my head about this situation, and I keep going back to the image last week of Devin Nunes in the House, with Speaker Ryan’s support, sabotaging the Russia investigation, and a few days later, Senators Warner and Burr working together to move forward. I don’t want to read too much into Senator Burr’s performance, but it was a sign that some Senate Republicans are willing to cross party lines to investigate the Trump administration. If we had seen no such signs, the Senate Democrats should have played hard ball on everything. But the question now is that, with the Senate Republicans taking a small step forward on Russia, should the Democrats keep moving forward, too?
If I could tell you that allowing a vote on Gorsuch would make one Republican Senator more willing to support the Russia investigation? What if that Senator were the deciding vote on a key committee? And what if filibustering Gorsuch might take that opening from Senator Burr and burn it? Burr is a descendant of Aaron Burr. He has a historic opportunity to make up for his family’s legacy by being a statesman more than ambitious partisan. I’m not suggesting that the Senate Democrats should disarm unilaterally, but I hope they are willing to talk through these two parallel fights, and work out some “understandings” to move forward on both fronts. A filibuster would not just shut down Gorsuch, it would shut down the Senate — not through the “talking” filibuster, but more practically shutting down any progress.
Moreover, I’d suggest one of the reasons so many Republicans — both voters in 2016 and the Congress now — have been so cohesive and partisan is that they are focused on filling Scalia’s seat. Everyone speculated that a number of evangelical conservatives and elite conservatives would stay home in November, but they were more slightly more unified as a party than the Democrats, shockingly. One reason was the open Supreme Court seat: it didn’t matter who would be making the appointment, as long as it was not a Democrat, and especially not Hillary Clinton. There is a chance that once the Senate Republicans get their prize, they may be slightly more willing to compromise.
I’m not sure about any of this perspective. I am often too willing to compromise and to support taking the first step in order to promote compromise. But in this case, I think the Senate Republicans were taking the first step. The Gorsuch appointment will have an enormous impact on American law for 30 years or more. But Trump’s presidency will have an impact for even longer. Restoring just a little bipartisanship now can also start to reverse a course of mutual recriminations that is destroying our country. One seat on the Supreme Court is worth a lot, but resolving this threat is worth more.