William & Mary Bill of Rights Journal
Abstract
You, too, can sue Donald Trump under the Emoluments Clause!
Since Inauguration Day, several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Washington, D.C. would constitute an unlawful emolument.
Most commentators quickly threw cold water on the prospect of any plaintiff prevailing. The trouble, they argued, is that plaintiffs cannot demonstrate a concrete and particularized injury from any putative violation of the Emoluments Clause. In legalese, they lack Article III standing. This skepticism was vindicated in December 2017, when a federal court dismissed one of the lawsuits for lack of Article III standing.
What no one has suggested is that plaintiffs do not need Article III standing to enforce the Emoluments Clause against Trump. Everyone assumes that these suits must live or die under federal standing doctrine. But, as we argue, Article III standing is essentially never a barrier to enforcing federal law. Indeed, plaintiffs may even win a merits ruling from the U.S. Supreme Court without ever possessing the elements of Article III standing.
If we are right, it is a big deal. Federal standing doctrine is understood to restrain federal courts from performing an advisory function. It also checks congressional power, preserving the Executive’s constitutional prerogative to enforce federal law. We challenge this received wisdom and argue that the Supreme Court has—perhaps unwittingly—created a route by which litigants may circumvent Article III’s standing requirements, diminishing the doctrine’s force. This has implications far beyond the Emoluments Clause; many constitutional and statutory provisions have long been thought effectively unenforceable because of the strictures of Article III standing.
This Article charts the course that no-standing plaintiffs may follow to enforce federal law and land in the U.S. Supreme Court. It also introduces a new term to the legal lexicon: the Federal–State Standing Gap. This term describes the space between Article III standing doctrine and the comparatively lax doctrine of many states. We did not discover this space; everyone who has taken or taught a course on federal jurisdiction knows about it. But we do think it has gone underappreciated. And that is the gap in the literature that this Article begins to fill.