I don't have terribly strong thoughts on the Foreign Emoluments Clause. I don't have strong thoughts on whether the Clause applies to the President (but I left open the possibility in an article I published in 2015). If the Clause does apply to the President, I don't have strong thoughts on what an "emolument" might include. And I certainly don't have strong thoughts on whether Donald Trump's business activity, as a matter of fact, is prohibited under the Clause.
But after learning that a lawsuit was poised to be filed by "a team of prominent constitutional law scholars," alleging that Mr. Trump is in violation of the Clause, my first question was: do these scholars have standing to bring such a claim?
In order to answer my question, I thought I'd check to see what these scholars had to say--at least, what they had to say before November 8, 2016.
The plaintiff in this case is a group called the Citizens for Responsibility and Ethics in Washington ("CREW"). Before a plaintiff can bring a claim, it's pretty basic Federal Courts stuff to note that the plaintiff must have standing to bring the lawsuit. That includes a particularized injury. A "generalized grievance" is not enough--that's something appropriate for resolution in Congress, not the courts.
While litigation under the Foreign Emoluments Clause is pretty rare, we at least have some good precedent under the Legislative Emoluments Clause to inform what constitutes a "generalized grievance."
Erwin Chemerinsky, the dean of the University of California-Irvine, is representing the plaintiff. Here's what he described about standing under the Legislative Emoluments Clause in his Federal Jurisdiction treatise:
Laurence Tribe, a Harvard professor, is another attorney representing the plaintiff. Here's his description in the third edition of his treatise on Constitutional Law:
There are many ways that the Foreign Emoluments Clause might be enforced. One obvious path would be impeachment, if Congress found that Mr. Trump was in violation. Another, as Andy Grewal has suggested, might creatively occur in a judicial setting after Mr. Trump leaves office.
But these hornbook examples from Professors Chemerinsky and Tribe demonstrate the high likelihood that this case will be dismissed. Simply put, there's nothing that distinguishes CREW from an ordinary citizen--there's no particularized injury, and their injury is simply a generalized grievance that the public at large shares. The resolution for such a dispute, then, does not lie with the judiciary.
UPDATE: Josh Blackman has more here.