A federal court has held that Maryland and the District of Columbia have standing to sue President Donald Trump over his personal finances regarding the Trump International Hotel in Washington, D.C., in what amounts to a political attack thinly veiled as a far-fetched constitutional theory.
The plaintiffs claim that Trump violates the Constitution’s foreign emoluments clause and presidential compensation clause any time anyone who represents any foreign government or state, respectively, confers anything of value to Trump or any part of the Trump Organization business conglomerate.
That gets the purpose of those provisions fundamentally wrong.
The foreign emoluments clause and presidential compensation clause exist to keep certain federal officials from accepting compensation from states, Congress, or foreign nations, in exchange for favorable official treatment.
But the plaintiffs—two state attorneys general, Brian E. Frosh, D-Md., and Karl A. Racine, D-D.C.—claim that those clauses also reach transactions as remote from the president’s duties as a state or foreign politician paying the going rate to stay, dine, or host events at the Trump International Hotel.
Under that reasoning, Presidents George Washington and Barack Obama violated the Constitution whenever state or foreign politicians bought one of Washington’s Mt. Vernon farm goods or one of Obama’s books.
One must wonder, where was the outrage in both the first and the last administration? Neither Washington nor Obama faced an emoluments lawsuit during their two terms in office.
For now, however, those issues remain on the horizon.
The opinion of the District Court for the District of Maryland, written by Senior Judge Peter J. Messitte, only addressed standing: the constitutional requirement that plaintiffs show that they have suffered some concrete injury; that the person whom they are suing caused their injury; that the court can remedy their injury; and that the case belongs in the courts and not with the political branches.
In Alfred L. Snapp & Son, Inc. v. Puerto Rico (1980), in which the court held that Puerto Rico could sue apple growers for violating federal labor laws, the Supreme Court explained when states can file a lawsuit as parens patriae, which traditionally referred to the king’s “royal prerogative” to act as guardian for so-called idiots, infants, and lunatics.
In this country, that prerogative fell to states as a way to defend the welfare of all their residents (not just idiots, infants, and lunatics)—or at least many of them, not just a few favorites—in court.
But in order for a state to do so, under Snapp & Son, the state must have suffered an injury to some “quasi-sovereign interest”: which Snapp & Son called a “judicial construct” that defies “simple or exact definition,” whose “vagueness … can only be filled in by turning to individual cases.”
So, the court listed cases dealing with water and air pollution and other public nuisances, illegal price fixing schemes, and comparable harms that affect broad swaths of a state population’s physical or economic welfare.
In the case against Trump, however, the plaintiffs barely left out the kitchen sink, alleging a host of injuries to four kinds of purported state interests: 1) sovereign; 2) quasi-sovereign; 3) proprietary; 4) and parens patriae.
While Messitte rejected some of those claims as being…
