FOURTH CIRCUIT DECIDES EMOLUMENTS-CLAUSE APPEAL

(Posted July 10, 2019) In two cases with nationwide significance, a panel of the Fourth Circuit has handed the president a significant victory relating to the Emoluments Clause. The court rules that the State of Maryland and the District of Columbia don’t have standing to assert violations of the clause, so the court directs that the actions be dismissed. The court’s two orders are here and here.

These actions center on the president’s business activities, principally his hotels. The District and the State had argued that the Trump International Hotel in Washington “markets itself to the diplomatic community,” so that a stream of foreign dollars flows to the president. The opinion also mentions other aspects of the president’s financial dealings, such as a favorable decision from China on an intellectual-property matter and real-estate projects in Indonesia and the United Arab Emirates. There’s also the matter of the Mar-a-Lago Club in Florida, which the complaint asserts benefits from publicity from the Department of State and US embassies. The ultimate claim is that this setup gives the president’s properties a competitive advantage.

The problem with all this, today’s panel finds, is that neither the State nor the District has made a sufficient showing of Article III standing to bring an action like this. For example, the court rules today that “the link between government officials’ patronage of the Hotel and the Hotel’s payment of profits or dividends to the President himself is simply too attenuated.” The court also notes that any claimed violation may not be redressable in a legal action, adding this zinger:

[C]ounsel for the District and Maryland, upon being questioned, was repeatedly unable to articulate the terms of the injunction that the District and Maryland were seeking to redress the alleged violations. When plaintiffs before a court are unable to specify the relief they seek, one must wonder why they came to the court for relief in the first place.

The court also addresses parens patriae standing, the ability of the government to bring suit to redress harms to its citizens. It finds that the claimed harms here are “exactly the same” as the ones asserted under Article III, containing the same problem of an “attenuated chain of inferences.” And finally, the panel rejects claims based on “quasi-sovereign interests” arising from favoritism, finding this to be nothing more than “a general interest in having the law followed.”

Procedurally, the district court had rejected the president’s motion to dismiss and had deferred adjudicating his claim of absolute immunity. The court then refused to certify the case for an interlocutory appeal. The Fourth Circuit reverses that ruling, grants a writ of mandamus, and directs that the litigation be dismissed, without reaching the claim of absolute immunity. This is an unqualified win for the president.

Today’s opinion contains this remarkable paragraph, outlining how extraordinary this litigation is:

First, the suit is brought directly under the Constitution without a statutory cause of action, seeking to enforce the Emoluments Clauses which, by their terms, give no rights and provide no remedies. Second, the suit seeks an injunction directly against a sitting President, the Nation’s chief executive officer. Third, up until the series of suits recently brought against this President under the Emoluments Clauses, no court has ever entertained a claim to enforce them. Fourth, this and the similar suits now pending under the Emoluments Clauses raise novel and difficult constitutional questions, for which there is no precedent. Fifth, the District and Maryland have manifested substantial difficulty articulating how they are harmed by the President’s alleged receipts of emoluments and the nature of the relief that could redress any harm so conceived. Sixth, to allow such a suit to go forward in the district court without a resolution of the controlling issues by a court of appeals could result in an unnecessary intrusion into the duties and affairs of a sitting President. Accordingly, not only is this suit extraordinary, it also has national significance and is of special consequence.

Under these circumstances, the panel finds that the district court erroneously refused to certify the case for interlocutory appeal. As for the procedural posture, “rather than remand the case to the district court simply to have it pointlessly go through the motions of certifying, we will take the district court’s orders as certified and grant our permission to the President to appeal those orders ….” This marks today’s rulings as remarkable from a procedural perspective, not just for the political implications.

This leaves one unanswered question: Who can sue to halt a violation of the Emoluments Clause? Beyond doubt, that could be used as a ground for impeachment; but can the courts ever take up such a case? How would any party establish standing? We may get an answer to that in further proceedings; I strongly suspect that the State and the District will either petition the Fourth Circuit for en banc rehearing, or else seek certiorari. A cert grant would make 2020 even more interesting than it already promises to be.