the Future of Change

This morning, nearly 200 Democratic members of Congress will file a lawsuit against President Trump for allegedly violating the Constitution’s Emoluments Clause, which prohibits members of the federal government from receiving payments from foreign powers.  While the meaning of the clause has rarely been tested or litigated, an issue this case raises has also come up in other lawsuits against the Trump Administration.  This question–who has the right to sue the President under this clause, and to challenge his other policies, such as the travel ban–is one that will likely be litigated for years to come.  In another Emoluments Clause lawsuit, this one filed just days ago by the State of Maryland and the District of Columbia, like the travel ban litigation involving the Hawaii, Washington State, and Minnesota, raises the question of whether state governments have what is called standing to sue the federal government.  This question of standing generally has been a bit of a political football.  For decades, conservative judges tried to reign in political lawsuits like these, requiring plaintiffs to show they suffered some concrete financial harm from the practices they were challenging.  This notion crystallized in a law review article penned by then-Judge Antonin Scalia, before he joined the Supreme Court.  The idea was then captured in a decision he would author once he joined the high court, Lujan v. Defenders of Wildlife.  There, the Supreme Court found that plaintiffs typically need to show some concrete, economic injury to their own interests to have standing to sue.  States have taken this precedent and crafted lawsuits that argue that they suffer direct, economic injury from the federal policies they are challenging.  This approach was first tried, successfully, by the Commonwealth of Massachusetts, together with other states, the City of New York, and several non-profit land trusts,  when they sued the administration of George W. Bush for the failure of its Environmental Protection Agency to regulate greenhouse gas emissions.  The Supreme Court recognized Massachusetts’s right to sue the feds, in part because the state owned coastal lands and climate change threatened its economic interests as a landowner.  Ironically, though, it was conservative states suing the Obama Administration that really took this decision and ran with it, alleging economic injury in a series of cases.  Now, liberal states are using this same argument to bring litigation against the travel ban and under the Emoluments Clause.  Whether the Supreme Court will hew to its decision in Massachusetts v. EPA remains to be seen.  As states have shown in suing both Democratic and Republican presidents, states can serve as a legal counterweight to the federal government, with the judiciary retaining the power to adjudicate disputes between them.  The judiciary’s power has long been to “say with the law is,” in the immortal words of Chief Justice John Marshall.  Standing to sue is what gets them in the door and the courts should continue to recognize it.  For more on this topic of state standing and the evolution of the doctrine, read here.