Red States Helped Pave Way to Sue Trump

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By Kimberly Strawbridge Robinson

Republican-led states may have unwittingly made it easier for blue states to sue President Donald Trump.

Maryland and the District of Columbia June 12 sued the president for “unprecedented constitutional violations” of the Constitution’s emoluments clauses. Those clauses prohibit federal officials from accepting gifts or “emoluments” from federal, state or foreign governments.

One theory Maryland puts forth to demonstrate that it has “standing"—that is, that it is a proper party to sue the president for such violations—is that it gave up the ability to pass anti-corruption provisions applying to government officials when it joined the union.

It should, therefore, be allowed to enforce the federal ones that were put in place instead, Maryland argued.

Courts have been skeptical in the past of such a role for states, Tara Leigh Grove, a professor at William and Mary Law School, Williamsburg, Va., who has argued in favor of limited standing for states, told Bloomberg BNA June 15.

But a 2007 U.S. Supreme Court decision hinted at a change. More recently, reliance on that case by Republican-led states to challenge Obama-era policies may have solidified the doctrine.

Boost Patronage

“The Emoluments Clauses are two critical, closely related anti-corruption provisions aimed at ensuring that the President faithfully serves the people, free from the distorting or compromising effects of financial inducements provided by foreign nations, their leaders, individual states in the Union, Congress, or other parts of the federal government,” Maryland and D.C. said in their complaint.

Trump has violated those clauses since his first day in office, they said.

For example, Trump “has used his position as President to boost” patronage of his hotels, Maryland and D.C. said. Foreign diplomats and other public officials have “made clear that the defendant’s position as President increases the likelihood that they will frequent his properties and businesses,” they said.

A non-profit group, a trade organization, and a group of nearly 200 Democratic members of Congress made similar claims in separate lawsuits.

‘Special Solicitude’

Maryland and D.C. made several arguments why they should be allowed to press their claims in federal courts. One that Maryland advances is based on the “special” role of states in challenging government action. States gave up some of their “sovereign prerogatives” when they joined the union. Maryland should be allowed to enforce the now-federal prerogatives that it gave up, it argues.

Courts, however, have historically leaned against such a special role for states, Zachary Price, a professor a the University of California, Hastings College of Law, San Francisco, who has also written on state standing, told Bloomberg BNA June 16.

Courts typically want parties—even states—to point to some tangible harm in order to press their claims through litigation, Price said.

But that changed with Massachusetts v. EPA, Price said. There, the U.S. Supreme Court split 5-4 in holding that Massachusetts could sue the George W. Bush administration for failing to regulate greenhouse gases emitted from cars.

“When a State enters the Union, it surrenders certain sovereign prerogatives,” the court said. “Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.”

“These sovereign prerogatives are now lodged in the Federal Government,” the court said. Given “Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis,” it said.

Massachusetts v. EPA seemed to “relax” the standing analysis for states, Grove said. The court’s “special solicitude” language hinted that states get more latitude when it comes meeting the otherwise strict burden of establishing standing, she said.

Courts, therefore, have been more friendly to state standing in recent years, Grove said—a position she doesn’t agree with.

That, in turn, has led to more “entrepreneurial litigation” by the states, Price said.

Obama-Era Suits

Republican states leaned on this theory to bring lawsuits against Barack Obama’s policies, including the high-profile immigration lawsuit filed by Texas and 25 other Republican-leaning states.

In Texas v. United States, those states challenged the administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents program, which deferred deportation for parents of U.S. citizens.

States “are not normal litigants for the purposes of invoking federal jurisdiction,” the U.S. Court of Appeals for the Fifth Circuit said in holding that they had standing to challenge DAPA. States are entitled to special solicitude in the standing analysis if they have a “procedural right” to challenge the administration’s policy, and the states’ "quasi-sovereign” interests are at stake.

Both were present in the DAPA challenge, the Fifth Circuit said.

The procedural-right prong was satisfied because the Administrative Procedure Act—under which the states brought their claims—was intended to provide relief to those injured by agency action, the court said.

And their “quasi-sovereign” interests were at stake because the states gave up their authority over immigration when they joined the union.

‘Notoriously Unpredictable’

But the Fifth Circuit in Texas v. United States also noted that Texas had alleged a more concrete harm. The state would be forced to shell out more money to provide drivers’ licenses to individuals covered under DAPA, the court said.

The Fifth Circuit’s standing analysis in Texas v. United States was a sort of hybrid test, Price said. It’s not clear if Texas’s special solicitude or its financial harms were doing most of the work in the standing analysis.

Although the U.S. Supreme Court agreed to hear that case, the then-evenly numbered Supreme Court split 4-4 with no written decision. It, therefore, wasn’t able to provide clarity.

But Maryland and D.C. have made similar claims of financial harms in their lawsuit, Grove said.

They claim that they own hotels and convention centers in the vicinity of Trump properties. Those state-owned properties lose business because of Trump’s emoluments violations.

That “competitor standing” seems the strongest of Maryland and D.C.'s standing arguments, Price said. Especially in light of the Fifth Circuit’s blending of the special solicitude and concrete harm analysis.

But the law in this area is “notoriously unpredictable,” Price said. There’s a lot of fact-specific cases to wade through, and courts haven’t always been consistent, he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Full text of complaint at http://src.bna.com/p4N.

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