BLUMENTHAL et al v. TRUMP

Filing 59

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 9/28/2018. (lcegs1)

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 1 of 58

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
Senator RICHARD BLUMENTHAL,
)
et al.,
)
)
Plaintiffs,
)
)
v.
)Civil Action No. 17-1154 (EGS)
)
DONALD J. TRUMP, in his official )
capacity as President of the
)
United States,
)
)
Defendant.
)
_________________________________)
MEMORANDUM OPINION
I.

Introduction
When Members of Congress sue the President in federal court

over official action, a court must first determine whether the
dispute is a “Case” or “Controversy” under Article III of the
United States Constitution, rather than a political dispute
between the elected branches of government. A critical part of
this inquiry is whether the plaintiffs have legal standing to
bring the action. Whether legislators have standing to sue often
turns on whether they can obtain the remedy they seek from the
court from fellow legislators. When a legislative remedy is
available, courts generally dismiss the case on jurisdictional
grounds. The Supreme Court, however, has not foreclosed federal
courts from appropriately exercising jurisdiction over certain
types of disputes between the political branches. This case is

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 2 of 58

one of those disputes. And when a case is properly before a
court because it presents an Article III “Case” or
“Controversy,” it is the role of the Judiciary “to say what the
law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
Plaintiffs, approximately 201 minority Members of the 535
Members of the United States Senate and House of
Representatives, allege that Donald J. Trump in his official
capacity as President of the United States (“the President”) is
violating the Foreign Emoluments Clause (“Clause”). Under this
Clause, certain federal officials, including the President, may
not “accept” an “emolument” from “any King, Prince or foreign
State” without “the Consent of Congress.” U.S Const. art. I, §
9, cl. 8. In Count I, plaintiffs seek declaratory relief
pursuant to 28 U.S.C. § 2201 in the form of a declaratory
judgment stating that the President is violating the Clause when
he accepts emoluments from foreign states without first seeking
the consent of Congress. Am. Compl., ECF No. 14 ¶¶ 85-86. In
Count II, plaintiffs seek injunctive relief pursuant to the
Court’s inherent authority to grant equitable relief and
pursuant to 18 U.S.C. § 1331 in the form of a Court order
enjoining the President from accepting “any present, Emolument,
Office, or Title, of any kind whatever” from a foreign state
without obtaining “the Consent of Congress.” Id. ¶ 92.

2

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 3 of 58

Pending before the Court is the President’s motion to
dismiss. The President argues that this case should be dismissed
on four independent grounds, 1 but the threshold question is
whether plaintiffs have standing to bring their claims. This
opinion addresses only this threshold question. With respect to
the grounds for dismissal that turn on the merits, the parties
dispute whether the profits that the President’s business
interests earn from foreign governments are covered
“emoluments.” However, for the purpose of determining whether
plaintiffs have standing to sue, the Court must accept as true
the allegations that the President has accepted prohibited
foreign emoluments without seeking the consent of Congress.
As is explained more fully below, the central question for
standing purposes is how to characterize the injury that occurs
when the President fails to seek the consent of Congress, as
required by the Clause. Plaintiffs argue that each Member of
Congress suffers a particularized and concrete injury when his
or her vote is nullified by the President’s denial of the
opportunity to vote on the record about whether to approve his

The President seeks dismissal on these grounds: (1) lack of
subject matter jurisdiction because plaintiffs do not have
standing to bring their claims; (2) lack of a cause of action to
seek the relief requested; (3) failure to state a claim upon
which relief can be granted; and (4) the injunctive relief
sought is unconstitutional. Def.’s Mot. to Dismiss (“Mot. to
Dismiss”), ECF No. 15-1 at 17-18.
1

3

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 4 of 58

acceptance of a prohibited foreign emolument. The President
argues that this is an intra-branch dispute which does not
belong in federal court because the plaintiffs’ remedy is to
convince a majority of their colleagues in both Houses to pass
legislation addressing the President’s ability to accept
prohibited foreign emoluments.
Upon careful consideration of the President’s motion to
dismiss, the opposition and reply thereto, the relevant
arguments of amici,2 the parties’ arguments at the June 7, 2018
motion hearing, and for the reasons explained below, the Court
finds that the plaintiffs have standing to sue the President for
allegedly violating the Foreign Emoluments Clause. The Court
therefore DENIES IN PART the motion to dismiss and DEFERS ruling
on the remaining arguments in the motion to dismiss.
II.

Factual Background
Relevant to whether they have standing to bring their

claims, plaintiffs allege that the President “has a financial
interest in vast business holdings around the world that engage
in dealings with foreign governments and receive benefits from
those governments.” Am. Compl., ECF No. 14 ¶ 2. Plaintiffs also
allege that the President owns “‘more than 500 separate
entities–hotels, golf courses, media properties, books,

The Court appreciates the illuminating analysis provided by the
amici.
2

4

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 5 of 58

management companies, residential and commercial buildings . . .
airplanes and a profusion of shell companies set up to
capitalize on licensing deals.’” Id. ¶ 34 (citation omitted).
As a result of his financial interests, plaintiffs allege
the President has accepted, and will accept in the future,
emoluments from foreign states. Id. Indeed, the President has
acknowledged “that his businesses receive funds and make a
profit from payments by foreign governments, and that they will
continue to do so while he is President.” Id. ¶ 37. Public
reporting has also confirmed this to be the case. Id. The
President, through his personal attorney, has likewise asserted
that the Constitution does not require “him to seek or obtain
Congress’ consent before accepting benefits arising out of
exchanges between foreign states and his businesses.” Id. ¶ 40.
The President has therefore not provided any information to
Congress about any foreign emoluments he has received. Id. ¶ 41.
Plaintiffs allege that because the President has denied them the
opportunity to give or withhold their consent, he has injured
them in their roles as Members of Congress, id. ¶ 5, and that
they cannot force the President to comply with the Constitution
absent a judicial order, id. ¶ 83.
III. Standard of Review
A motion to dismiss for lack of standing is properly
considered a challenge to the Court's subject matter
5

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 6 of 58

jurisdiction and should be reviewed under Federal Rule of Civil
Procedure 12(b)(1). Haase v. Sessions, 835 F.2d 902, 906 (D.C.
Cir. 1987)(“[T]he defect of standing is a defect in subject
matter jurisdiction.”). The Court must therefore consider the
defendant’s motion to dismiss pursuant to Rule 12(b)(1) before
reaching a merits challenge pursuant to Rule 12(b)(6). Sinochem
Int’l Co. v. Malay Int’l Shipping Corp., 549 U.S. 422, 430-31
(2007). To survive a Rule 12(b)(1) motion to dismiss, the
plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. Moran v. U.S. Capitol Police Bd.,
820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992)). “Because Rule 12(b)(1)
concerns a court's ability to hear a particular claim, the court
must scrutinize the plaintiff's allegations more closely when
considering a motion to dismiss pursuant to Rule 12(b)(1) than
it would under a motion to dismiss pursuant to Rule 12(b)(6).”
Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65
(D.D.C. 2011). In so doing, the court must accept as true all of
the factual allegations in the complaint and draw all reasonable
inferences in favor of plaintiffs, but the court need not
“accept inferences unsupported by the facts alleged or legal
conclusions that are cast as factual allegations.” Rann v. Chao,
154 F. Supp. 2d 61, 63 (D.D.C. 2001).

6

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 7 of 58

IV.

Analysis
A.

Standing

“Article III of the Constitution limits the jurisdiction of
the federal courts to ‘Cases’ and ‘Controversies.’” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting
U.S. Const. art. III, § 2). “‘One element of the case-orcontroversy requirement’ is that plaintiffs ‘must establish that
they have standing to sue.’” Clapper v. Amnesty Int’l USA, 568
U.S. 398, 408 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818
(1997)). The standing requirement “serves to prevent the
judicial process from being used to usurp the powers of the
political branches.” Id. The standing inquiry “often turns on
the nature and source of the claim asserted” and the specific
facts alleged. Warth v. Seldin, 422 U.S. 490, 500 (1975). “[T]he
law of Art. III standing is built on a single basic idea—the
idea of separation of powers.” Allen v. Wright, 468 U.S. 737,
752 (1984).
To establish standing, “a plaintiff must show (1) an
‘injury in fact,’ (2) a sufficient ‘causal connection between
the injury and the conduct complained of,’ and (3) a
‘likel[ihood]’ that the injury ‘will be redressed by a favorable
decision.’” Susan B. Anthony List, 134 S. Ct. at 2341 (quoting
Lujan, 504 U.S. at 560-61 (1992)); see also Hollingsworth v.
Perry, 570 U.S. 700, 705 (2013) (“To have standing, a litigant
7

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 8 of 58

must seek relief for an injury that affects him in a personal
and individual way.”). These requirements help to “assure that
the legal questions presented to the court will be resolved, not
in the rarified atmosphere of a debating society, but in a
concrete factual context conducive to a realistic appreciation
of the consequences of judicial action.” Valley Forge Christian
Coll. v. Ams. United for Separation of Church & State, Inc., 454
U.S. 464, 472 (1982). “The [effect of the] exercise of judicial
power [is] most vivid when a federal court declares
unconstitutional an act of the Legislative or Executive Branch.”
Id. at 473. Therefore, to ensure the “continued effectiveness of
the federal courts in performing that role . . . it has been
recognized as a tool of last resort.” Id. at 473-74.
“The party invoking federal jurisdiction bears the burden
of establishing these elements.” Lujan, 504 U.S. at 561
(citations omitted). “Since they are not mere pleading
requirements but rather an indispensable part of the plaintiff's
case, each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Id.
When considering whether a legislator has standing, the
Court “must carefully inquire as to whether [plaintiffs] have
met their burden of establishing that their claimed injury is
8

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 9 of 58

personal, particularized, concrete, and otherwise judicially
cognizable.” Raines, 521 U.S. at 820. The “standing inquiry [is]
especially rigorous when reaching the merits of the dispute
would force us to decide whether an action taken by one of the
other two branches of the Federal Government was
unconstitutional.” Id. at 819-20.
B.

Foreign Emoluments Clause

The Foreign Emoluments Clause provides:
No Title of Nobility shall be granted by the
United States: And no Person holding any
Office of Profit or Trust under them, shall,
without the Consent of the Congress, accept of
any present, Emolument, Office, or Title, of
any kind whatever, from any King, Prince, or
foreign State.
U.S Const. art. I, § 9, cl. 8. “[T]he language of the Emoluments
Clause is both sweeping and unqualified.” 17 Op. O.L.C. 114, 121
(1993). The acceptance of an emolument barred by the Clause is
prohibited unless Congress chooses to permit an exception. Id.;
see also Letter from James Madison to David Humphreys (Jan. 5,
1803), https://founders.archives.gov/documents/Madison/02-04-020275# (“the Constitution of the United States has left with
Congress the exclusive authority to permit the acceptance of
presents from foreign Governments by persons holding Offices
under the United States”). And the President may not accept any
emolument until Congress votes to give its consent.

9

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 10 of 58

The Clause was intended by the Framers to guard against
“corruption and foreign influence.” 3 M. Farrand, Records of the
Federal Convention of 1787, 327 (1966). Historically, Presidents
have complied with the Clause by either seeking and obtaining
congressional consent prior to accepting foreign presents or
emoluments, or by requesting an opinion from the Executive or
Legislative Branch’s advisory office as to whether the Clause
applies.3 See Br. of Federal Jurisdiction and Constitutional Law
Scholars as Amici Curiae in Support of Pls., ECF No. 44 at 24. 4
One such example occurred in 1830 when President Jackson placed
“‘at the disposal of Congress’” a gold medal presented to him by
the Republic of Colombia, noting that accepting presents from a
foreign government is prohibited by the Constitution. Id.
(quoting Message of President Andrew Jackson to the Senate and
House of Representatives, dated January 19, 1830, 3 Compilation
of the Messages and Papers of the Presidents 1029, 1030 (James
D. Richardson ed., 1897)). Similarly, when the King of Siam
presented President Lincoln with various gifts, he informed
Congress, which directed that the gifts “‘be deposited in the

In deciding a motion to dismiss, “a Court may take judicial
notice of historical, political, or statistical facts, or any
other facts that are verifiable with certainty.” Youkelsone v.
FDIC, 910 F. Supp. 2d 213, 221 (D.D.C. 2012) (citing Mintz v.
FDIC, 729 F. Supp. 2d 276, 278 n.2 (D.D.C. 2010)).
4 When citing electronic filings throughout this opinion, the
Court cites to the ECF header page number, not the original page
number of the filed document.
3

10

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 11 of 58

collection of curiosities at the Department of Interior.’” Id.
at 25 (quoting Joint Resolution No. 20, A Resolution providing
for the Custody of the Letter and Gifts from the King of Siam,
Res. 20, 37th Cong., 12 Stat. 616 (1862)).
Modern Presidents, except for President Trump, have sought
advice from the Department of Justice Office of Legal Counsel
(“OLC”) prior to accepting potentially covered emoluments. Id.
For example, President Kennedy requested an opinion on whether
the offer of an “honorary Irish citizenship” would fall within
the scope of the Clause. Id. (citing 1 Op. O.L.C. Supp. at 278).
And prior to his acceptance of the Nobel Peace Prize in 2009,
President Obama requested an opinion from OLC as to whether
accepting the prize would conflict with the Clause. Id.
Since the Clause prohibits the President from accepting a
prohibited foreign emolument unless Congress votes to consent,
the Constitution gives each individual Member of Congress a
right to vote before the President accepts. Under the
Constitution, Congress expresses its consent through the
combined votes of its individual members. U.S. Const. art. I, §
9, cl. 8. Congress “consist[s] of a Senate and House of
Representatives.” Id. art. I, § 1. The “Consent of Congress” is
obtained when a majority of the individual members of each House
vote to consent. Id. art. I, § 3, cl. 1 (“each Senator shall
have one Vote”); id. art. I, § 5, cl. 3 (requiring, at the
11

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 12 of 58

request of one-fifth of those present, that “the Yeas and Nays
of the Members of either House on any question” to be recorded).
That Congress acts as “the body as a whole” 5 in providing or
denying consent does not alter each Member’s constitutional
right to vote before the President accepts a prohibited foreign
emolument because the body can give its consent only through a
majority vote of its individual members.
C.

Plaintiffs Have Standing to Bring their Claims

The President argues that the Court lacks jurisdiction over
plaintiffs’ claims because plaintiffs have not met their burden
to establish a judicially cognizable injury as is required by
Article III. Def.’s Mot. to Dismiss (“Mot. to Dismiss”), ECF No.
15 at 21-28; Def.’s Reply (“Reply”), ECF No. 28 at 10-19. The
President also disputes that the alleged injury is fairly
traceable to him. Mot. to Dismiss, ECF No. 15-1 at 24; Reply,
ECF No. 28 at 8.
Plaintiffs contend that they have standing: (1) the injuryin-fact they have suffered is that the President has denied them
a voting opportunity to which the Constitution entitles them;
(2) the injury is fairly traceable to the President’s conduct

United States v. Ballin, 144 U.S. 1, 7 (1892) (“The two houses
of congress are legislative bodies representing larger
constituencies. Power is not vested in any one individual, but
in the aggregate of the members who compose the body, and its
action is not the action of any separate member or number of
members, but the action of the body as a whole.”).
5

12

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 13 of 58

because he has neither asked for their consent nor provided them
with any information about the prohibited foreign emoluments he
has already allegedly accepted; and (3) the injury can be
redressed by a favorable judicial decision if the Court requires
the President to obtain congressional consent before accepting
prohibited foreign emoluments. Pls.’ Opp’n, ECF No. 17 at 13.
As discussed below, the President’s arguments rely on a
repeated misstatement of the injury alleged and on proffers of
plainly inadequate legislative remedies. The Court is persuaded
that plaintiffs have sustained their burden to show that they
have standing to bring their claims: (1) they have adequately
alleged a judicially cognizable injury that is fairly traceable
to the President and can be redressed by a favorable judicial
decision; and (2) although plaintiffs’ claims raise separationof-powers concerns, plaintiffs have no adequate legislative
remedy and this dispute is capable of resolution through the
judicial process.
1. Supreme Court and D.C. Circuit Precedent
a. Raines v. Byrd
The parties rely heavily on the Supreme Court’s decision in
Raines v. Byrd. See generally Mot. to Dismiss, ECF No. 15-1;
Pls.’ Opp’n, ECF No. 17; Reply, ECF No. 28 (discussing Raines,
521 U.S. 811 (1997)). The President argues that plaintiffs lack
standing pursuant to Raines; plaintiffs respond that Raines does
13

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 14 of 58

not foreclose their standing to bring their claims and indeed
provides support for it. The Court will therefore discuss the
case in detail.
In Raines, six members of Congress who had voted against
the Line Item Veto Act (“Act”) sued the Secretary of the
Treasury and the Director of the Office of Management and
Budget, challenging the constitutionality of the Act. Raines,
521 U.S. at 814. The Act authorized the President to “‘cancel’
certain spending and tax benefit measures after he ha[d] signed
them into law.” Id. The plaintiffs claimed that the Act injured
them in their official capacities by: (1) “‘alter[ing] the legal
and practical effect of all votes they may cast on bills’”
subject to the Act; (2) “‘divest[ing] [them] of their
constitutional role in the repeal of legislation’”; and
(3) “‘alter[ing] the constitutional balance of powers between
the Legislative and Executive Branches . . . .’” Id. at 816
(quoting Compl.).
At issue was whether the plaintiffs had standing to bring
their claims. The Court began its inquiry by focusing on the
requirement in standing analysis that the injury be a personal
one: “We have consistently stressed that a plaintiff’s complaint
must establish that he has a ‘personal stake’ in the alleged
dispute, and that the alleged injury suffered is particularized
as to him.” Id. at 819 (quoting Lujan, 504 U.S. at 560-61 and
14

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 15 of 58

n.1). Next, the Court noted “[w]e have also stressed that the
alleged injury must be legally and judicially cognizable. This
requires, among other things, that the plaintiff have suffered
‘an invasion of a legally protected interest which is . . .
concrete and particularized,’ Lujan, 504 U.S. at 560, and that
the dispute is ‘traditionally thought to be capable of
resolution through the judicial process.’” Id. (quoting Flast v.
Cohen, 392 U.S. 83, 97 (1968)). Finally, the Court noted that
the jurisdictional standing requirement must be strictly
complied with: “our standing inquiry has been especially
rigorous when reaching the merits of the dispute would force us
to decide whether an action taken by one of the other two
branches of the Federal Government was unconstitutional.” Id. at
819-20 (citations omitted). “‘[T]he law of Art. III standing is
built on a single basic idea—the idea of separation of powers.’”
Id. at 820 (quoting Allen, 468 U.S. at 751). In view of these
observations, the Court concluded that it “must carefully
inquire as to whether appellees have met their burden of
establishing that their claimed injury is personal,
particularized, concrete, and otherwise judicially cognizable.”
Id.
The Court distinguished Powell v. McCormack, in which it
held that a Congressman’s “constitutional challenge to his
exclusion from the House of Representatives (and his consequent
15

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 16 of 58

loss of salary) presented an Article III case or controversy,”
id. at 820-21 (citing Powell, 395 U.S. 486, 496, 512-14 (1969)),
on two grounds. First, the Raines plaintiffs had not been
singled out for unfavorable treatment from the other members of
their respective bodies as occurred in Powell; rather, “[t]heir
claim is that the Act causes a type of institutional injury (the
diminution of legislative power), which necessarily damages all
Members of Congress and both Houses of Congress equally.” Id. at
821. Second, the Raines plaintiffs “[did] not claim that they
have been deprived of something to which they are personally
entitled . . .” id.; rather, their
claim of standing is based on a loss of
political power, not loss of any private
right, which would make the injury more
concrete. . . . [T]he injury claimed by the
Members of Congress here is not claimed in any
private capacity but solely because they are
Members of Congress. If one of the Members
were to retire tomorrow, he would no longer
have a claim; the claim would be possessed by
his successor instead. The claimed injury thus
runs (in a sense) with the Member’s seat, a
seat which the Member holds (it may quite
arguably be
said) as
trustee for
his
constituents, not as a prerogative of personal
power.
Id. (internal citation omitted). Thus, according to the Court,
the Raines plaintiffs’ injury was an institutional one and not
sufficiently concrete and personal.
The Court then distinguished Coleman v. Miller, “[t]he one
case in which we have upheld standing for legislators (albeit
16

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 17 of 58

state legislators) claiming an institutional injury.” Id.
(discussing Coleman v. Miller, 307 U.S. 433 (1939)). In Coleman,
the vote on whether to ratify a proposed federal constitutional
amendment was tied at twenty to twenty, which meant the
amendment would not have been ratified. Id. at 822 (citing
Coleman, 307 U.S. at 436). The Lieutenant Governor, as the
presiding officer of the State Senate, cast a vote in favor of
the amendment and it was deemed ratified. Id. The twenty state
senators who had voted against the amendment sued, and
eventually the Court held that the members of the legislature
had standing because “if these legislators (who were suing as a
bloc) were correct on the merits, then their votes not to ratify
the amendment were deprived of all validity.” Id. In Raines, the
Court clarified that “our holding in Coleman stands . . . for
the proposition that legislators whose votes would have been
sufficient to defeat (or enact) a specific legislative Act have
standing to sue if that legislative action goes into effect (or
does not go into effect), on the ground that their votes have
been completely nullified.” Id. at 823. Noting that this is what
the Coleman holding stands for “at most,” the Court declined to
distinguish Coleman on, inter alia, the ground that “Coleman has
no applicability to a similar suit brought by federal
legislators, since the separation-of-powers concerns present in
such a suit were not present in Coleman . . . .” Id. at 824 n.8.
17

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 18 of 58

The Court then distinguished the claims in Raines from
those in Coleman:
[Here], [plaintiffs] have not alleged that
they voted for a specific bill, that there
were sufficient votes to pass the bill, and
that the bill was nonetheless deemed defeated.
In the vote on the Act, their votes were given
full effect. They simply lost that vote. Nor
can they allege that the Act will nullify
their votes in the future in the same way that
the votes of the Coleman legislators had been
nullified. In the future, a majority of
Senators and Congressmen can pass or reject
appropriations bills; the Act has no effect on
this process. In addition, a majority of
Senators and Congressmen can vote to repeal
the Act, or to exempt a given appropriations
bill
(or
a
given
provision
in
an
appropriations bill) from the Act; again, the
Act has no effect on this process.
Id. at 824 (footnote omitted). Thus, according to the Court, the
Raines plaintiffs could not allege that their votes had been
nullified in the past; rather, they had lost the vote on the
Act. See id. And the Raines plaintiffs could not allege that
their votes would be nullified in the future because they had a
variety of legislative remedies at their disposal. See id.
The Court then considered the lack of a historical practice
of lawsuits being filed “on the basis of claimed injury to
official authority or power” as a result of analogous
confrontations between the Legislative and Executive Branches of
the federal government. Id. at 826; see also infra Section
IV.3.b. The Court concluded that, under the Constitution, it is

18

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 19 of 58

not the role of the Article III courts to have “‘some amorphous
general supervision of the operations of government . . . .’”
Raines, 521 U.S. at 829 (quoting United States v. Richardson,
418 U.S. 166, 192 (1974) (Powell, J., concurring)).
The Court rejected the Raines plaintiffs’ basis for
standing, ultimately holding that “these individual members of
Congress do not have a sufficient ‘personal stake’ in this
dispute and have not alleged a sufficiently concrete injury to
have established Article III standing.” Id. at 830 (no citation
for internal quotation in original). In so holding, the Court
noted that “appellees have alleged no injury to themselves as
individuals (contra, Powell), the institutional injury they
allege is wholly abstract and widely dispersed (contra,
Coleman), and their attempt to litigate this dispute at this
time and in this form is contrary to historical experience.” Id.
at 829. The Court stated that it “attach[ed] some importance to
the fact that appellees have not been authorized to represent
their respective Houses of Congress in this action, and indeed
both Houses actively oppose their suit.” Id. (footnote omitted).
The Court also thought it important to note that “our conclusion
[does not] deprive[] Members of Congress of an adequate remedy
(since they may repeal the Act or exempt appropriations bills
from its reach) nor forecloses the Act from constitutional

19

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 20 of 58

challenge (by someone who suffers judicially cognizable injury
as a result of the Act).” Id.
b. Arizona State Legislature v. Arizona Independent
Redistricting Commission
Relying on Coleman, the Supreme Court recently reaffirmed
that legislators, albeit state legislators as an institutional
plaintiff, have standing to sue based on a vote nullification
claim. In Arizona State Legislature v. Arizona Independent
Redistricting Commission, the state legislature plaintiff
challenged a ballot measure that would have denied it the
authority to draw congressional districts. 135 S. Ct. 2652, 2659
(2015). The legislature’s alleged injury was that the ballot
initiative deprived it of its legislative prerogative to
initiate redistricting. Id. at 2663. Relying on Coleman, as
clarified in Raines, the Court held that the plaintiff had
standing because “their votes have been completely nullified.”
Id. at 2665 (quoting Raines, 521 U.S. at 823). As the Court
explained, “[o]ur conclusion that the Arizona Legislature has
standing fits [within Coleman]” because the ballot initiative
“together with the Arizona Constitution’s ban on efforts to
undermine the purposes of an initiative” would “‘completely
nullif[y]’ any vote by the Legislature, now or ‘in the future,’
purporting to adopt a redistricting plan.” Id. at 2667 (quoting
Raines, 521 U.S. at 823-24). The Court distinguished Raines on

20

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 21 of 58

the grounds that Raines had not been brought by an institutional
plaintiff: “The Arizona Legislature, in contrast, is an
institutional plaintiff asserting an institutional injury, and
it commenced this action after authorizing votes in both of its
chambers. That ‘different . . . circumstanc[e],’ was not sub
judice in Raines.” Id. at 2664 (citation omitted). The Court also
noted that the case before it “does not touch or concern the
question whether Congress has standing to bring a suit against
the President . . . which would raise separation of powers
concerns absent here.” Id. at 2665 n.12.

*

*

*

*

*

In sum, Raines teaches that when a suit is brought by an
individual Member of Congress, the member can allege either a
personal injury or an institutional injury. If the injury is
personal, standing is present when the injury arises out of
something to which the member is personally entitled, such as
the salary associated with his or her seat. As to an
institutional injury, the Court has recognized standing when a
legislator’s vote has been completely nullified. The Supreme
Court has upheld legislator standing based on a vote
nullification claim in two instances. In Coleman, a bloc of
individual state “legislators whose votes would have been
21

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 22 of 58

sufficient to defeat (or enact) a specific legislative Act have
standing to sue if that legislative action goes into effect (or
does not go into effect), on the ground that their votes have
been completely nullified.” Raines, 521 U.S. at 823 (footnote
omitted). In Arizona State Legislature, the legislature, as an
institutional plaintiff authorizing the lawsuit, had standing to
sue based on the alleged nullification of their votes “now” or
“in the future” as a result of a ballot initiative. 135 S. Ct.
at 2667. Although neither of these cases implicated federal
separation-of-powers concerns, the Raines Court specifically
declined to hold that Coleman would be inapplicable “to a
similar suit brought by federal legislators.” Raines, 521 U.S.
at 824 n.8.
Raines also teaches that it is not necessary for an
institutional claim to be brought by or on behalf of the
institution. Id. at 829 (“We attach some importance to the fact
that appellees have not been authorized to represent their
respective Houses of Congress in this action, and indeed both
Houses actively oppose their suit.”). Indeed, in Coleman, the
claim was not brought on behalf of the state senate as an
institutional plaintiff, but rather by a bloc of individual
legislators who had voted not to ratify the constitutional
amendment. 307 U.S. at 436. Finally, by not overruling Coleman,
the Raines Court suggests that vote nullification is an
22

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 23 of 58

institutional injury that is personal, although not in the sense
that the injury in Powell was personal, to the legislators
entitled to cast the vote that has been nullified.
Regarding the separation-of-powers concerns implicated by
an inter-branch suit, Raines instructs the Court to consider
whether there is a lack of a historical practice of lawsuits
being filed “on the basis of claimed injury to official
authority or power” as a result of analogous confrontations
between the Legislative and Executive Branches of the federal
government. Raines, 521 U.S. at 826. Raines also instructs the
Court to consider whether there is an adequate legislative
remedy and whether another plaintiff could bring the case. Id.
c. D.C. Circuit Precedent
The Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) has applied Raines twice, each time finding
legislator standing to be foreclosed. 6 In Chenoweth v. Clinton,
four members of Congress sued the President and another

Because the Court has determined that plaintiffs have standing
to bring their claims pursuant to Raines and subsequent D.C.
Circuit precedent, it need not address the parties’ arguments
regarding pre-Raines D.C. Circuit authority. At oral argument,
the Court questioned plaintiffs about their reliance on preRaines D.C. Circuit authority, given that Raines called into
question portions of that authority. See Chenoweth, 181 F.3d
112, 115 (D.C. Cir. 1999). In response, plaintiffs clarified
their reliance on Raines and post-Raines D.C. Circuit precedent
for the proposition that they have standing based on their vote
nullification claim. Hr’g Tr., ECF No. 54 at 20:22-24.
6

23

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 24 of 58

Executive Branch official to enjoin the implementation of the
American Heritage Rivers Initiative (“AHRI”), a program
President Clinton created by Executive Order. 181 F.3d 112, 112
(D.C. Cir. 1999). After President Clinton announced his
intention to create the AHRI, three of the four plaintiffs
introduced a bill to end the program, but it never came to a
vote. Id. at 113. Plaintiffs then sued, alleging that the
President’s creation of the program by Executive Order “deprived
[the plaintiffs] of their constitutionally guaranteed
responsibility of open debate and vote on issues and legislation
involving interstate commerce, federal lands, the expenditure of
federal monies, and implementation of the [National
Environmental Policy Act].” Id. (citing Compl.). Applying
Raines, the Court held that the plaintiffs lacked standing
because the injury they alleged was “a dilution of their
authority as legislators,” which was “identical to the injury
the Court in Raines deprecated as ‘widely dispersed’ and
‘abstract.’” Id. at 115 (no citation for internal quotation in
original). The Court reasoned that “[i]f, as the Court held in
Raines, a statute that allegedly ‘divests [congressmen] of their
constitutional role’ in the legislative process does not give
them standing to sue, then neither does an Executive Order that
allegedly deprives congressmen of their ‘right[] to participate
and vote on legislation in a manner defined by the
24

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 25 of 58

Constitution.’” Id. (citation omitted). A central element of the
Court’s reasoning was that “[i]t [was] uncontested that the
Congress could terminate the AHRI were a sufficient number in
each House so inclined.” Id. at 116.
In view of the Supreme Court’s decision in Raines, the
Court considered whether its earlier ruling in Kennedy v.
Sampson survived. Id. at 116-17 (discussing Kennedy v. Sampson,
511 F.2d 430 (D.C. Cir. 1974)). In Kennedy, the Court held,
partially relying on the pre-Raines understanding of Coleman,
that an individual Senator had standing to challenge a
Presidential pocket veto. Kennedy, 511 F.2d at 433-35. Noting
that Raines narrowed the Coleman holding, the Court stated that
Kennedy may nonetheless remain good law:
Even under this narrow interpretation, one
could argue that the plaintiff in Kennedy had
standing. The pocket veto challenged in that
case had made ineffective a bill that both
houses of the Congress had approved. Because
it was the President’s veto—not a lack of
legislative support—that prevented the bill
from becoming law (either directly or by the
Congress voting to override the President’s
veto), those in the majority could plausibly
describe the President’s action as a complete
nullification of their votes.
Chenoweth, 181 F.3d. at 116-17 (emphasis added). The Court
distinguished the claims before it from Coleman on the ground
that plaintiffs “do not allege that the necessary majorities in
Congress voted to block the AHRI. Unlike the plaintiffs in

25

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 26 of 58

Kennedy and Coleman, therefore, they cannot claim their votes
were effectively nullified by the machinations of the
Executive.” Id. at 117.
In the second post-Raines case considered, Campbell v.
Clinton, thirty-one Members of Congress sued President Clinton,
alleging that he violated the War Powers Resolution and the War
Powers Clause of the Constitution by directing the participation
of U.S. forces in Yugoslavia. 203 F.3d 19, 19 (D.C. Cir. 2010).
A month after President Clinton announced that participation,
Congress voted on four resolutions related to the conflict:
(1) a declaration of war was defeated 427 to 2; (2) an
“authorization” of the air strikes was defeated 213 to 213;
(3) a resolution that would have required the President to end
U.S. participation in the operation was defeated; and
(4) funding for involvement in the operation was approved. Id.
at 20. Plaintiffs claimed that they fit within the “Coleman
exception to the Raines rule” by filing suit after having
“defeat[ed] the War Powers Resolution authorization by a tie
vote.” Id. at 22. The Court found neither of their claims to be
analogous to the nullification that occurred in Coleman, which
the Court understood “to mean treating a vote that did not pass
as if it had, or vice versa.” Id. at 22. In Coleman, “state
officials endorsed a defeated ratification, treating it as
approved, while the President here did not claim to be acting
26

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 27 of 58

pursuant to the defeated declaration of war or a statutory
authorization, but instead ‘pursuant to [his] constitutional
authority to conduct U.S. foreign relations and as Commander-inChief and Chief Executive.’” Id. at 22 (discussing Coleman v.
Miller, 307 U.S. 433 (1939) and quoting Letter to Congressional
Leaders Reporting on Airstrikes Against Serbian Targets in the
Federal Republic of Yugoslavia (Serbia and Montenegro), 35
Weekly Comp. Pres. Doc. 528 (Mar. 26, 1999)). The Court reasoned
that plaintiffs’ argument based on the War Powers Resolution,
“although cast in terms of the nullification of a recent vote,
essentially is that the President violated the . . . War Powers
Resolution” and their argument based on the War Powers Clause
“is that the President has acted illegally-in excess of his
authority-because he waged war in a constitutional sense without
a congressional delegation.” Id. Regarding the Raines Court’s
use of the word “nullification,” the Court stated:
We think the key to understanding the Court’s
treatment of Coleman and its use of the word
nullification is its implicit recognition that
a ratification vote on a constitutional
amendment is an unusual situation. It is not
at all clear whether once the amendment was
“deemed ratified,” see Raines, 521 U.S. at
822, the Kansas Senate could have done
anything to reverse that position. We think
that must be what the Supreme Court implied
when it said the Raines plaintiffs could not
allege that the “[Line Item Veto Act] would
nullify their votes in the future,” and that,
after all, a majority of senators and
congressmen could always repeal the Line Item
27

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 28 of 58

Veto Act. Id. at 824 (emphasis added). The
Coleman senators, by contrast, may well have
been powerless to rescind a ratification of a
constitutional amendment that they claimed had
been defeated. In other words, they had no
legislative remedy.
Id. at 22-23 (quoting Raines, 521 U.S. at 824) (footnote
omitted). Applying Raines, the Court held that the plaintiffs
lacked standing under “the Coleman exception” because they had
“ample legislative power to have stopped prosecution of the
‘war’” despite having lost the vote on the War Powers Resolution
authorization. Id. at 23 (no citation for internal quotation in
original). Therefore, despite the tie vote, the Campbell
plaintiffs had legislative remedies at their disposal, unlike
the situation in Coleman.

*

*

*

*

*

In sum, D.C. Circuit precedent teaches that individual
Members of Congress do not have standing to sue the Executive
Branch when their institutional injury is such that they can
obtain their remedy in Congress. In Campbell, the Court
understood vote nullification “to mean treating a vote that did
not pass as if it had, or vice versa.” Campbell, 203 F.3d at 22.
In Chenoweth, the Court suggested that notwithstanding Raines, a
single Member of Congress could have standing to sue based on a
28

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 29 of 58

vote nullification claim when it was the President’s action,
rather than “a lack of legislative support,” that nullified the
Member’s vote. Chenoweth, 181 F.3d at 117. Such a situation is
therefore a third instance of a type of vote nullification for
which a legislator could have standing. 7
2. Plaintiffs Adequately Allege a Judicially Cognizable
Injury
a. Injury-in-Fact
To establish that they have an injury-in-fact, plaintiffs
must allege that their injury is “personal, particularized,
concrete, and otherwise judicially cognizable.” Raines, 521 U.S.
at 820. Regarding the requirement that the injury be “legally
and judicially cognizable,” “the plaintiff [must allege to] have
suffered ‘an invasion of a legally protected interest which is .

The closest constitutional analogy to plaintiffs’ claims here
is that in Kucinich v. Bush. 236 F. Supp. 2d 1 (D.D.C. 2002). In
that case, thirty-two Members of the House of Representatives
“challenged President Bush’s unilateral withdrawal from the 1972
Anti-Ballistic Missile Treaty . . . without the approval of
Congress,” contending that President Bush was required to obtain
their consent before terminating a treaty. Id. at 1. Applying
Raines, Chenoweth, and Campbell, the Court held plaintiffs did
not have standing because their “claim of a ‘grievous
institutional injury’ where they are ‘deprived of their
constitutional right . . . to participate in treaty termination’
was no different from the institutional injuries alleged in
Chenoweth, Campbell, and Raines.” Id. at 9. The Court did not
discuss whether the plaintiffs’ votes had been nullified. In any
event, the Court also concluded that the plaintiffs’ raised a
nonjusticiable political question. Id. The President has not
argued that the claims here involve nonjusticiable political
questions. Therefore, this persuasive authority is inapposite.
7

29

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 30 of 58

. . concrete and particularized’ Lujan, 504 U.S. at 560, and
that the dispute is ‘traditionally thought to be capable of
resolution through the judicial process.’” Id. at 819 (quoting
Flast, 392 U.S. at 97).
b. Plaintiffs Adequately Allege an Institutional
Injury
In the context of legislator standing, the Supreme Court
has recognized at least one type of institutional injury for
which legislators may have standing to sue: complete vote
nullification. Coleman, 307 U.S. at 438; Raines, 521 U.S. at
821-23; Ariz. State Legislature, 135 S. Ct. at 2667; Cummings v.
Murphy, No. 17-2308, slip op. at 18 (D.D.C. Aug. 14, 2018)
(“[c]omplete vote nullification is clearly a type of
institutional injury sufficient to support legislator
standing”). Since an institutional injury will “necessarily
damage all Members of Congress and both Houses of Congress
equally,” Raines, 521 U.S. at 821, it will not be a personal
injury in the sense that the injury in Powell was personal. If
institutional injuries were incapable of also being personal to
individual members of the institution, however, the Court in
Raines would have overruled Coleman. Id. at 819 (“We have
consistently stressed that a plaintiff’s complaint must
establish that he has a ‘personal stake’ in the alleged dispute,
and that the alleged injury suffered is particularized as to

30

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 31 of 58

him.”). Instead, the Supreme Court reaffirmed Coleman in both
Raines, id. at 821, and Arizona State Legislature, 135 S. Ct. at
2665, necessarily holding that the institutional injury alleged
–vote nullification–was sufficiently personal to each of the
individual plaintiffs to satisfy the standing requirement under
Article III.
The Clause requires the President to ask Congress before
accepting a prohibited foreign emolument. Accepting the
allegations in the Complaint as true, which the Court must at
this juncture, the President is accepting prohibited foreign
emoluments without asking and without receiving a favorable
reply from Congress. The “nature and source of the claim,”
Warth, 422 U.S. at 500, is an unusual 8 constitutional provision
which unambiguously prohibits the President from accepting any
emolument from “any King, Prince or foreign State” unless
Congress chooses to permit an exception. U.S. Const. art. I, §
9, cl. 8; 17 Op. O.L.C. 114, 121 (1993). The specific facts
alleged are that the President has accepted, and intends to
continue accepting, prohibited foreign emoluments without
seeking congressional consent. Am. Compl., ECF No. 14 ¶¶ 4, 37,
39, 40, 77, 78, 79. Furthermore, the President has not provided

The only similar provision is the Article II requirement that
the President obtain the advice and consent of Congress prior to
taking covered executive branch action. U.S. Const. art. II, §
2, cl. 2.
8

31

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 32 of 58

any information to Congress about any foreign emoluments he has
received. Id. ¶¶ 41, 80. The President is depriving plaintiffs
of the opportunity to give or withhold their consent, thereby
injuring them “in their roles as members of Congress.” Id. ¶ 5.
Specifically, the President has neither sought plaintiffs’
consent prior to accepting prohibited foreign emoluments, nor
provided any information to Congress about them, thereby
preventing plaintiffs from “exercis[ing] their constitutional
prerogative to authorize or reject the specific emoluments he is
accepting.” Id. ¶ 41. Plaintiffs adequately allege that the
President has completely nullified their votes in the past
because he has accepted prohibited foreign emoluments as though
Congress had provided its consent. And he will completely
nullify their votes in the future for the same reason, as
plaintiffs allege that he intends to continue this practice. The
President’s alleged acceptance of prohibited foreign emoluments
as though Congress provided consent is indistinguishable from
“treating a vote that did not pass as if it had, or vice versa.”
Campbell, 203 F.3d at 22. And, as soon as the President accepts
a prohibited foreign emolument without obtaining congressional
consent, his acceptance is irreversible. Id. at 22-23.
Accordingly, plaintiffs adequately allege that the President has
completely nullified their votes.

32

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 33 of 58

Although plaintiffs do not sue on behalf of Congress, but
rather in their individual official capacities as Members of
Congress, their ability to bring this suit is not foreclosed by
Supreme Court and D.C. Circuit precedent. The Raines Court did
not hold that it would be necessary for an institutional claim
to be brought by or on behalf of the institution. Raines, 521
U.S. at 829. Rather, the fact that the case had not been
authorized by the institution was a relevant consideration, but
not dispositive, in determining that the Raines plaintiffs
lacked standing. Id. Moreover, the claim in Coleman was not
brought on behalf of the state senate as an institutional
plaintiff, but rather by a bloc of individual members who had
voted not to ratify the constitutional amendment. Coleman, 307
U.S. at 438. The Supreme Court distinguished Raines from Arizona
State Legislature because the latter was brought by the
legislature as an institution, Ariz. State Legislature, 135 S.
Ct. at 2664, but in finding the legislature to have standing,
the Supreme Court did not hold that an institutional claim may
be brought only by the institution. See generally id.
Furthermore, notwithstanding Raines, a single Member of Congress
could have standing to sue based on a vote nullification claim
when it was the President’s action, rather than “a lack of
legislative support,” that nullified the Member’s vote.
Chenoweth, 181 F.3d at 117.
33

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 34 of 58

i. The President Misstates the Injury
The President acknowledges that “when a legislative vote is
deemed defeated by executive action,” the legislator has
standing to sue unless there is a legislative remedy. Mot. to
Dismiss, ECF No. 15-1 at 17. Although he disputes that
plaintiffs’ votes have been “defeated by executive action,” his
argument relies on a misstatement of the alleged injury. The
President contends that plaintiffs cannot plausibly allege that
he has prevented votes from being taken on the emoluments bills
pending before Congress,9 or that he has prevented Congress from
otherwise voting on the emoluments issue. Id. at 24, 26. He also
emphasizes that Congress may still choose to vote on the pending
bills or on bills introduced in the future. Id. at 26. However,
the votes contemplated by the President are not votes to
consent, or not, in response to the President’s request for
consent prior to his acceptance of a prohibited foreign
emolument. Rather, these are votes on the issue of emoluments.
Injury to their power to legislate on the issue of emoluments is
not the injury plaintiffs allege. See generally Am. Compl., ECF
No. 14. To be clear, plaintiffs’ alleged injury is caused by the

See S. Con. Res. 8, 115th Cong. (2017) (among other things,
declaring the President’s dealings through his companies with
foreign governments to be potential violations of the emoluments
clause); H.R.J. Res. 16, 115th Cong. (2017) (denying
congressional consent for the President to accept any foreign
emolument during his Presidency).
9

34

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 35 of 58

President’s alleged refusal to give them the opportunity to
exercise their constitutional right to vote on whether to
consent prior to his acceptance of prohibited foreign
emoluments. It is irrelevant that Congress can express its
consent through legislation on the issue of emoluments or that
it has done so in the past on limited occasions. 10 In the absence
of such legislation, the President deprives plaintiffs of the
opportunity to vote every time he accepts an emolument from “any
King, Prince, or foreign State” without the consent of Congress.
U.S. Const. art. I, § 9, cl. 8. 11
ii. The President Reads the Precedent too
Narrowly
According to the President, a Court may conclude that
plaintiffs have standing for a vote nullification claim only
when they can “allege that ‘the necessary majorities in the
Congress voted’ to withhold consent to the President’s alleged

See Foreign Gifts and Decorations Act of 1966, 5 U.S.C. §
7342.
11 Similarly, the President argues that unlike the situation in
Coleman, there is nothing that is “unusual” or “irreversible”
here because Congress may choose to vote on “the emoluments
issue” in the future. Mot. to Dismiss, ECF No. 15-1 at 26;
Reply, ECF No. 28 at 14. Again, the President’s argument relies
on the same misstatement of the alleged injury. Moreover, each
time the President accepts prohibited foreign emoluments without
the consent of Congress, that acceptance without consent is
irreversible. Finally, although not “unusual” in the sense that
word was used in Coleman, the President’s failure to comply with
the Clause is highly unusual given that prior Presidents have
ensured that their actions were consistent with the Clause. See
supra Section IV.B.
10

35

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 36 of 58

acceptance of prohibited foreign emoluments.” Mot. to Dismiss,
ECF No. 15-1 at 25 (quoting Chenoweth, 181 F.3d at 117). As an
initial matter, again the President has misstated the injury.
Moreover, the Court disagrees with this narrow reading of
Coleman. Although the Raines Court narrowed the Coleman holding,
the Court neither held nor implied that the only type of vote
nullification claim for which a legislator would have standing
would be “legislators whose votes would have been sufficient to
defeat (or enact) a specific legislative Act . . . if that
legislative action goes into effect (or does not go into
effect), on the ground that their votes have been completely
nullified.” Raines, 521 U.S. at 823. Indeed, following Raines,
the Supreme Court recognized that the Arizona State Legislature
as an institutional plaintiff had standing to bring a vote
nullification claim. See Ariz. State Legislature, 135 S. Ct. at
2667. The legislature there did not allege that it had the
“necessary majorities” to take action; rather the claimed injury
was that the ballot initiative deprived the plaintiff of a
legislative “prerogative.” Id. at 2663. The D.C. Circuit has
emphasized that the Coleman exception is a “narrow rule,”
Chenoweth, 181 F.3d at 116; see Campbell, 203 F.3d at 22-23, and
has interpreted the Coleman exception “to mean treating a vote
that did not pass as if it had, or vice versa,” Campbell, 203
F.3d at 22. As the Court has explained, supra Section IV.C.2.b,
36

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 37 of 58

here the President has allegedly accepted prohibited foreign
emoluments as though Congress has provided its consent, which is
indistinguishable from “treating a vote that did not pass as if
it had, or vice versa.”12 Id.
The President insists that upholding standing here would
require a “drastic extension of Coleman,” which the Supreme
Court in Raines rejected. Mot. to Dismiss, ECF No. 15-1 at 25.
The Court disagrees. Raines would have required a drastic
extension of Coleman because the nature of the vote
nullification in Coleman was different from the “abstract
dilution of legislative power” alleged in Raines. Raines, 521
U.S. at 826. And critically, the Raines plaintiffs had adequate
legislative remedies at their disposal. Id. at 824. Here, by
contrast, the President’s complete nullification of plaintiffs’
votes is entirely different from the “abstract dilution of
legislative power” alleged in Raines. Id. at 826. And as will be
explained in detail, plaintiffs have no adequate legislative
remedies. See infra Section IV.C.4.

For the same reason, the Court rejects the President’s
argument that plaintiffs’ reliance on the vote nullification
theory articulated in Coleman is misplaced to the extent they
claim their injury encompasses being deprived of the option of
not voting because none of the precedent recognizes such an
injury. Reply, ECF No. 28 at 17.
12

37

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 38 of 58

c. Plaintiffs’ Alleged Injury is Personal,
Particularized and Concrete
Plaintiffs allege that the President has accepted, and
intends to continue accepting, prohibited foreign emoluments
without seeking congressional consent, thereby depriving them of
the opportunity to vote on whether to consent to his acceptance
of emoluments before he accepts them. Am. Compl., ECF No. 14 ¶¶
3-4. Plaintiffs’ injury is to a “legally protected interest”
because the Clause prohibits the President from accepting “any”
emolument from “any King, Prince, or foreign State” without the
consent of Congress. U.S Const. art. I, § 9, cl. 8. Consent is
obtained through the aggregate of the specific votes that each
individual Member of Congress is entitled to take. Id. art. I, §
1; art. I, § 3, cl. 1; art. I, § 5, cl. 3. Although this injury
is dispersed among all Members of Congress, as will necessarily
be the case when an institutional injury is alleged, this does
not render the injury less concrete or particularized. See
Raines, 521 U.S. at 821 (stating an institutional injury will
“necessarily damage all Members of Congress and both Houses of
Congress equally”); Ariz. State Legislature, 135 S. Ct. at 2664
(Plaintiff “is an institutional plaintiff asserting an
institutional injury”). Rather, each time the President
allegedly accepts a foreign emolument without seeking
congressional consent, plaintiffs suffer a concrete and

38

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 39 of 58

particularized injury—the deprivation of the right to vote on
whether to consent to the President’s acceptance of the
prohibited foreign emolument—before he accepts it. And although
the injury is an institutional one, the injury is personal to
legislators entitled to cast the vote that was nullified. See
Raines, 521 U.S. at 823 (narrowing but not overruling the
holding in Coleman); Ariz. State Legislature, 135 S. Ct. at
2664-65 (holding that the legislature has standing to sue);
supra Section IV.C.2.b. Accordingly, plaintiffs adequately
allege that they “have suffered ‘an invasion of a legally
protected interest which is . . . [personal,] concrete and
particularized.’” Raines, 521 U.S. at 819 (quoting Lujan, 504
U.S. at 560).
The President argues that the injury alleged here is
insufficiently concrete to give the plaintiffs a “personal stake
in the dispute” because the injury “damages all Members of
Congress and both Houses of Congress equally.” Reply, ECF No. 28
at 10 (quoting Raines, 521 U.S. at 821, 830). Furthermore,
according to the President, the alleged injury cannot support
Article III standing because it is felt equally by all Members
of Congress “solely because they are Members of Congress,” as
distinct from the personal injury alleged in Powell. Reply, ECF
No. 28 at 11 (quoting Raines, 521 U.S. at 821). The Court
disagrees. The Raines Court recognized two types of injuries
39

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 40 of 58

that could support legislator standing: (1) a personal injury
such as that typified in Powell; and (2) an institutional
injury—vote nullification—such as that in Coleman. Raines, 521
U.S. at 829-30. An institutional injury will “necessarily damage
all Members of Congress and both Houses of Congress equally” and
will be felt equally by Members of Congress “solely because they
are Members of Congress.” Id. at 821. And as explained, supra at
30-31, by reaffirming Coleman in Raines and Arizona State
Legislature, the Supreme Court necessarily held that the
institutional injury alleged was sufficiently personal to each
of the plaintiffs to satisfy the standing requirement under
Article III.
i. Plaintiffs’ Alleged Injury is Distinguishable
from the Injuries Alleged in the Precedent
The President argues that plaintiffs’ claims are squarely
foreclosed by Raines. The Court disagrees. As an initial matter,
the President reads Raines to establish “a foundational
principle that the denial of institutional legislative
prerogative is not a judicially cognizable injury.” Mot. to
Dismiss, ECF No. 15-1 at 16. This broad principle, however, is
not supported by Raines. Raines establishes that legislators may
have standing based on the nullification of their votes, which
is an institutional, as opposed to a personal, injury. Raines,
521 U.S. at 821-23. To establish the broad principle asserted by

40

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 41 of 58

the President, the Raines Court would have needed to overrule
Coleman. Not only did the Raines Court not overrule Coleman, but
the Court also relied on Coleman to uphold standing in Arizona
State Legislature, in which the alleged injury was deprivation
of a legislative prerogative. Ariz. State Legislature, 135 S.
Ct. at 2663.
The President argues that the injury alleged here amounts
only to a “dilution of institutional legislative power.” Mot. to
Dismiss, ECF No. 15-1 at 22 (quoting Raines, 521 U.S. at 820).
Moreover, according to the President, there is little difference
between the claim in Raines and the claim here because the
members in Raines argued that the challenged Act “deprived them
of ‘their constitutional role in the repeal of legislation’”
which “does not differ materially from Plaintiffs’ claim that
they have been denied their constitutional role in deciding
whether to consent to the President’s acceptance of allegedly
prohibited foreign emoluments,” Reply, ECF No. 28 at 10-11
(quoting Raines, 521 U.S. at 816). In so arguing, the President
insists that plaintiffs’ claimed injury is indistinguishable
from the claimed injury in Chenoweth. Mot. to Dismiss, ECF No.
15-1 at 23-24. The Court disagrees. The injury alleged here is
distinguishable from those alleged in Raines and Chenoweth. In
Raines, plaintiffs sued after being on the losing side of the
vote that enacted the Line Item Veto Act, alleging that their
41

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 42 of 58

injury was the diminution of legislative power caused by the
Act. Raines, 521 U.S. at 814. In Chenoweth, plaintiffs sued
after their bill seeking to end a program created by the
President by Executive Order failed to be brought to a vote,
alleging that their injury was that Members of Congress had been
deprived of their right to vote on the Presidentially-created
program. Chenoweth, 181 F.3d at 112. In each case, plaintiffs
either lost the vote in Congress or did not have the political
influence to bring their bill to a vote, and then sought relief
in the courts. Here, by contrast, plaintiffs’ alleged injury is
caused by the President’s alleged acceptance of prohibited
foreign emoluments before seeking and obtaining congressional
consent, not by any action taken or not taken by their
congressional colleagues. See Chenoweth, 181 F.3d at 117 (“it
was the President’s veto—not a lack of legislative support—that
prevented the bill from becoming a law”); infra Section
IV.C.3.a. The President’s repeated misstatement of the injury
does not change the nature of plaintiffs’ alleged injury.
Finally, the President’s alleged acceptance of a prohibited
foreign emolument before obtaining congressional consent does
not “dilute” plaintiffs’ legislative power because they do not
allege injury to their ability to legislate on the issue of
emoluments.

42

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 43 of 58

3. Separation-of-Powers Considerations
a. Plaintiffs Lack Adequate Legislative Remedies
The Court does agree with the President that, “when
legislators possess ‘political tools with which to remedy their
purported injury,’ they may not seek the aid of the Judiciary.”
Mot. to Dismiss, ECF No. 15-1 at 26 (quoting Campbell, 203 F.3d
at 23-24). But here, plaintiffs lack such tools.
In addition to Congress bringing the bills currently
pending to a vote, see supra Section IV.C.2.b.i, the President
suggests that the following types of legislation would provide
plaintiffs with a legislative remedy: (1) voting on whether what
plaintiffs allege “constitute[s] violations of the Foreign
Emoluments Clause by the President and whether Congress should
provide its consent,” Mot. to Dismiss, ECF No. 15-1 at 2;
(2) “vot[ing] on a private bill [13] consenting to the receipt of
what it construed to be emoluments received from foreign
governments or a joint resolution expressing its disagreement
with such receipt,” id. at 24; and/or (3) “vot[ing] on a joint

A private bill is legislation that addresses a matter of
narrow interest, which after being passed in identical form by
the House and Senate, is submitted to the President for
signature. United States Senate, Bills and Resolutions,
Legislation, Laws and Acts, available at
https://www.senate.gov/pagelayout/legislative/d_three_sections_w
ith_teasers/bills.htm.
13

43

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 44 of 58

resolution[14] that provides what Congress perceives to be the
proper definition of an emolument and prohibits any and all
emoluments, including ones unknown to Congress,” Reply, ECF No.
28 at 18. According to this argument, plaintiffs have ample
legislative remedies at their disposal; they just don’t have the
votes.
The President’s purported legislative remedies are clearly
inadequate within the meaning of Raines. Raines, 521 U.S. at 829
(legislative remedy must be an “adequate” remedy). In Raines,
Chenoweth, and Campbell, adequate legislative remedies were
available to redress the plaintiffs’ grievances. In Raines, “a
majority of Senators and Congressmen c[ould] pass or reject
appropriations bills; the Act has no effect on this process.
Moreover, a majority of Senators and Congressmen c[ould] vote to
repeal the Act, or to exempt a given appropriations bill (or a
given provision in an appropriations bill) from the Act; again,
the Act has no effect on this process.” Id. at 824. In
Chenoweth, “[i]t [was] uncontested that the Congress could

A joint resolution, with one exception, is legislation that
requires the approval of both the House and Senate and is
submitted to the President for signature. The exception is when
the joint resolution proposes a constitutional amendment. United
States Senate, Bills and Resolutions, Legislation, Laws and
Acts, available at
https://www.senate.gov/pagelayout/legislative/d_three_sections_w
ith_teasers/bills.htm.
14

44

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 45 of 58

terminate the AHRI were a sufficient number in each House so
inclined.” Chenoweth, 181 F.3d at 116. And in Campbell,
“Congress certainly could have passed a law forbidding the use
of U.S. forces in the Yugoslav campaign.” Campbell, 203 F.3d at
23.15
Here, by contrast, legislation on the emoluments issue does
not provide an adequate remedy. First, in asking this Court to
accept the proposition that legislation on the emoluments issue
would be an adequate remedy, the President asks this Court to
ignore this constitutional Clause. The Court may not do so. See
Marbury, 1 Cranch at 174 (“It cannot be presumed that any clause
in the constitution is intended to be without effect

. . . .”).

The

Clause is unambiguous: acceptance is prohibited without
“Consent.” U.S Const. art. I, § 9, cl. 8. The Clause therefore
places the burden on the President to convince a majority of
Members of Congress to consent. The legislation suggested by the
President flips this burden, placing the burden on Members of
Congress to convince a majority of their colleagues to enact the
suggested legislation. This is not what the Clause requires.

The President disputes that the precedent requires “political
remedies [to] put the plaintiff members back in the same
position as if the Executive had not caused the alleged injury
in the first place.” Reply, ECF No. 28 at 17. This is beside the
point because in each case, there was an adequate legislative
remedy, whereas here there is none.
15

45

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 46 of 58

Second, the President does not explain why such
legislation, assuming he signed it, would prevent him from
accepting prohibited foreign emoluments. His failure to explain
is especially problematic given that the Constitution itself has
not prevented him from allegedly accepting them. Third, the
President does not explain how the proposed legislation would be
adequate in view of the allegation that the President has not
provided any information to Congress about the prohibited
foreign emoluments he has received, and that he does not intend
to change this practice. Am. Compl., ECF No. 14 ¶¶ 40, 41.
Legislating after Congress happens to learn about his acceptance
of a prohibited foreign emolument through news reports is
clearly an inadequate remedy. Fourth, legislation disagreeing
with the President’s acceptance of prohibited foreign emoluments
does not provide a remedy for him already having allegedly
accepted them without seeking and obtaining consent. Finally,
legislation would neither prevent the President from accepting
future prohibited foreign emoluments, nor force him to return
those he has already accepted.
Furthermore, and in contrast to the situation in Chenoweth
and Campbell, Congress’ appropriations power cannot be used to
obtain a legislative remedy, such as refusing to appropriate
funds for an Executive Branch program or for participation in a
war, because there are no federal appropriations associated with
46

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 47 of 58

the President’s receipt of prohibited foreign emoluments. This
is another aspect of the Clause that makes it unusual. The
President suggests that among plaintiffs’ legislative remedies
is the use of Congress’ appropriations power to retaliate
against him for his alleged acceptance of prohibited foreign
emoluments by “tak[ing] action on matters not directly related
to emoluments.” Reply, ECF No. 28 at 18. Courts have treated
Congress’ use of its appropriations power as a legislative
remedy in situations in which failing to provide funding could
actually resolve the dispute. See, e.g., Campbell, 203 F.3d at
23 (“Congress always retains appropriations authority and could
have cut off funds for the American role in the conflict.”).
Here, however, Congress lacks a “broad range of legislative
authority it can use to stop” the President from failing to seek
consent before accepting prohibited foreign emoluments.
Campbell, 203 F.3d at 24 (noting that where “Congress has a
broad range of legislative authority it can use to stop a
President’s” action, Congress cannot mount a challenge to that
action pursuant to Raines).
Finally, the availability of the extreme measure of
impeachment, see Campbell, 203 F.3d at 23 (noting that “there
always remains the possibility of impeachment should a President
act in disregard of Congress’ authority”), to enforce the
President’s compliance with the Clause is not an adequate remedy
47

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 48 of 58

within the meaning of Raines. Cf. Nat’l Treasury Emp. Union v.
Nixon, 492 F.2d 587, 615 (D.C. Cir. 1974) (“the Constitution
should not be construed so as to paint this nation into a corner
which leaves available only the use of the impeachment process
to enforce the performance of a perfunctory duty by the
President”).
b. Capable of Resolution Through the Judicial
Process
Raines also instructs the Court to consider whether “the
dispute is ‘traditionally thought to be capable of resolution
through the judicial process.’” Raines, 521 U.S. at 819 (quoting
Flast, 392 U.S. at 97). The President argues that it is not
because “every[16] confrontation between one or both Houses of
Congress and the Executive Branch has been resolved through the
political process rather than through suits brought by
legislators.” Reply, ECF No. 28 at 10 (citing Raines, 521 U.S.
at 826). Plaintiffs respond that the Raines Court discussed the
novelty of litigation between the legislative and executive

Again, the President has overstated the proposition. What the
Raines Court said was “in analogous confrontations between one
or both Houses of Congress and the Executive Branch, no suit was
brought on the basis of claimed injury to official authority or
power.” Raines, 521 U.S. at 826 (emphasis added). In Kennedy v.
Sampson, the D.C. Circuit held that Senator Kennedy had standing
to bring the suit and the Court issued a declaratory judgment
ruling that the President’s failure to take action on the bill
at issue did not result in a pocket veto, but instead the bill
became law. 511 F.2d at 442. Such suits are therefore not
nonexistent.
16

48

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 49 of 58

branches, noting that it “appear[ed]” to argue against the
plaintiffs, but did not elaborate further. Pls.’ Opp’n, ECF No.
17 at 20.
The Raines Court’s examples of analogous confrontations
between Congress and the Executive Branch are distinguishable
from the situation here. In Raines, the Court discussed at
length the fact that no President sued to challenge the
constitutionality of the Tenure of Office Act. Raines, 521 U.S.
at 826. That Act, which required the consent of the Senate for
the President to remove an official whose appointment to the
Executive Branch required Senate confirmation, was passed in
1867 and repealed in 1887. Id. The Raines Court stated that if
federal courts had become involved, “they would have been
improperly and unnecessarily plunged into the bitter political
battle being waged between the President and Congress” over the
Act. Id. at 827. Here, there is no “bitter political battle”
between the President and Congress over the constitutionality of
an Act passed, and ultimately repealed, by Congress that
impinged on the President’s appointments authority. Id.
Two of the other three examples cited by the Raines Court
involved constitutional challenges to legislation that
impermissibly altered the power of the Legislative or Executive
Branch, but where the claim was not brought by one branch
against the other. See INS v. Chadha, 462 U.S. 919, 959
49

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 50 of 58

(1983)(holding the one House congressional veto provision in
Section 244(1)(2) of the Immigration and Nationality Act to be
unconstitutional); Buckley v. Valeo, 424 U.S. 1, 140 (1976)
(holding the provisions of the then-existing Federal Election
Campaign Act of 1971 that “vest[ed] in the [Federal Election]
Commission primary responsibility for conducting civil
litigation in the courts of the United States for vindicating
public rights, violate[d] Art. II, § 2, cl., 2, of the
Constitution.”). These cases are distinguishable because here,
plaintiffs do not allege that their injury has been caused by a
similar type of legislation passed by Congress and signed into
law by the President. Furthermore, there is no legislative
remedy. In the final example, the Supreme Court held that a bill
that was presented to the President less than ten days before a
congressional session was adjourned did not become law when the
President “neither signed the bill nor returned it to the
Senate” in a challenge brought by certain Native American
Tribes. Okanogan, Methow, San Poelis (or San Poil), Nespelem,
Colville, and Lake Indian Tribes or Bands of the State of
Washington v. United States, 279 U.S. 655, 673, 691-92 (1929).
This case is distinguishable for the same reasons—at issue there
was the legal status of a bill that had been passed by both
Houses of Congress and presented to the President less than ten
days before the adjournment of the congressional session. The
50

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 51 of 58

decision to do so had been made by Congress and could be
remedied by Congress.
Similarly, this is not a situation in which plaintiffs
disagree with the manner in which the President is administering
or enforcing the law. See United States v. Windsor, 570 U.S.
744, 789 (2013) (Scalia, J. dissenting) (Ours is not a “system
in which Congress and the Executive can pop immediately into
court, in their institutional capacity, whenever the President .
. . implements a law in a manner that is not to Congress’
liking.”). Neither is it the situation in Raines where the Court
rejected the plaintiffs’ ability to sue the President over the
exercise of a statutory provision they believed to be
unconstitutional. Raines, 521 U.S. at 830. Furthermore, although
historical practice militates against Members of Congress
turning to the Courts to resolve a dispute for which there is a
legislative resolution, as explained supra Section IV.C.3.a,
there is no adequate legislative remedy here.
This case does not raise the concern that the Court, in
exercising jurisdiction over plaintiffs’ claims, would be
engaging in some kind of “amorphous general supervision of the
operations of government.” Id. at 826 (quoting Richardson, 418
U.S. at 194 (Powell, J., concurring)). Rather, this dispute
raises concrete legal questions that are within the purview of
the federal courts to adjudicate: (1) what is an emolument;
51

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 52 of 58

(2) what does it mean to accept an emolument; and (3) whether
the President has violated the Foreign Emoluments Clause. The
President contends that “Congress is far better equipped than
the courts to assess whether particular arrangements violate the
Foreign Emoluments Clause, and if so, how best to address the
violation.” Reply, ECF No. 28 at 18. While Congress clearly has
the power to legislate on the issue of emoluments, “it is ‘the
duty of the judicial department’—in a separation-of-powers case
as in any other—‘to say what the law is.’” N.L.R.B. v. Canning,
134 S. Ct. 2550, 2560 (2014) (quoting Marbury, 1 Cranch at 177).
Therefore, it is the role of the Judiciary to “say what the law
is” regarding the meaning of the Foreign Emoluments Clause and
the President’s compliance with it. Cf. United States v. Nixon,
418 U.S. 683, 705 (1974) (“We therefore reaffirm that it is the
province and duty of this Court ‘to say what the law is’ with
respect to the claim of privilege asserted in this case.”)
(quoting Marbury, 1 Cranch at 177). The President does not
dispute the role of the courts in interpreting the Constitution,
but rejects the proposition that judicial review is appropriate
here because “Congress continues to possess effective tools that
would serve as checks on the Executive.” Def.’s Suppl. Br. in
Support of his Mot. to Dismiss and in Response to the Brs. of
Amici Curiae (“Def.’s Suppl. Br.”), ECF No. 51 at 26-27.
Nevertheless, as explained supra Section IV.C.3.a, there are no
52

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 53 of 58

adequate legislative remedies here.
Furthermore, unlike in Raines, the dispute here is neither
an “interbranch dispute about calibrating the legislative and
executive powers [nor] is it an intrabranch dispute between
segments of Congress itself,” either of which would counsel
against judicial involvement based on separation-of-powers
principles. Raines, 521 U.S. at 833 (Souter, J., concurring).
Rather, this dispute is about the President’s alleged refusal to
seek consent prior to his alleged acceptance of prohibited
foreign emoluments that he receives as a result of his personal
financial interests. The President has strenuously attempted to
frame the dispute as “an intrabranch dispute between segments of
Congress itself,” see Raines, 521 U.S. at 833 (Souter, J.,
concurring), but as the Court has thoroughly explained, supra
Section IV.3.A, this characterization is incorrect.
Accordingly, although this case implicates separation-ofpowers concerns, finding standing here “keep[s] the Judiciary’s
power within its proper constitutional sphere.” Raines, 521 U.S.
at 820. As the Court has explained, plaintiffs’ claim of
standing is not based on a “loss of political power,” see id. at
821, as was the case in Raines, because the injury alleged is
not an injury to their power to legislate on the issue of
emoluments. And since plaintiffs have no adequate legislative
remedy, they appropriately seek relief in federal court. See
53

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 54 of 58

Valley Forge Christian Coll., 454 U.S. at 473-74 (“exercis[ing]
. . .

judicial power has been recognized as a tool of last

resort”).
4. The Ability of Another Plaintiff to Bring this Case
Raines instructs the Court to consider whether another
plaintiff could bring the case. Raines, 521 U.S. at 829 (noting
that the Court’s holding did not foreclose a constitutional
challenge by someone with standing). At oral argument, the Court
asked counsel for the President a hypothetical question:
Whether, if this case had been brought by Congress as an
institutional plaintiff, counsel would agree that it would have
standing. Hr’g Tr., ECF No. 54 at 71:2-6. The government refused
to concede that it would. Id. at 71:7-25, 77:5-20. At the same
time, counsel stated, “[j]ust because these plaintiffs don’t
have standing, it doesn’t mean another plaintiff in a proper
case might not have standing.” Id. at 76:2-3. When pressed by
the Court about who that plaintiff would be, counsel conceded:
“I have a hard time thinking through which plaintiff would be a
proper plaintiff to enforce the Emoluments Clause.” Id. at 76:810. That no plaintiff would have standing to challenge the
President’s alleged violation of the Clause is certainly
consistent with the President’s argument that “when an official
fails to first seek congressional consent before accepting
emoluments prohibited by the Foreign Emoluments Clause, it only
54

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 55 of 58

means that the official has violated the Clause, not that each
Member of Congress automatically acquires a judicially
cognizable personal stake to challenge the violation.” Def.’s
Suppl. Br., ECF No. 51 at 11. The faulty premise underlying the
President’s argument, however, is that there is a legislative
remedy for violating the Clause.

Hr’g Tr., ECF No. 54 at 79:12-

80:18.
The Court is aware of one existing 17 challenge to the
President’s receipt of prohibited foreign emoluments. However,
that challenge seeks to remedy entirely different injuries: The
District of Columbia alleges injuries to its quasi-sovereign
interest and its proprietary interest, and the State of Maryland
alleges injuries to its sovereign interests, quasi-sovereign
interest and its proprietary interest. See District of Columbia
v. Trump, 291 F. Supp. 3d 725, 735 (D. Md. 2018).
Accordingly, if these plaintiffs do not have standing to
bring their claims to address their alleged injury, it is
unlikely that another plaintiff would, rendering the Clause
unenforceable against the President except via impeachment. As
explained, supra at 45, impeachment is an inadequate remedy
within the meaning of Raines.

Another challenge was dismissed for lack of standing. See
Citizens for Responsibility and Ethics in Washington v. Trump,
276 F. Supp. 3d 174 (S.D.N.Y. 2017), appeal docketed, No. 18-474
(2d Cir. 2018).
17

55

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 56 of 58

5. Traceability and Redressability
“A plaintiff must allege a personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.” Allen, 468 U.S. at 751.
The President contends that “[p]laintiffs’ alleged injury is not
traceable to the President: The President has not prevented
Congress from voting on whether he may accept emoluments, and
Plaintiffs remain free to convince their congressional
colleagues to redress their alleged injury.” Reply, ECF No. 28
at 8. The Court disagrees. Again, the President has misstated
the alleged injury. Moreover, this matter is before the Court on
a motion to dismiss and the Court must take as true the facts
that are alleged in the complaint. Plaintiffs’ well-pleaded
complaint alleges that the President has accepted prohibited
foreign emoluments without first seeking the consent of
Congress. Am. Compl., ECF No. 14 ¶¶ 4-5. The alleged injury is
therefore directly traceable to the President’s alleged failure
to seek Congressional consent.
Plaintiffs seek declaratory relief in the form of a
declaratory judgment stating that the President is violating the
Clause when he accepts emoluments from foreign states without
first seeking the consent of Congress, and injunctive relief in
the form of an order from the Court enjoining the President from
accepting “any present, Emolument, Office, or Title, of any kind
56

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 57 of 58

whatever” from a foreign state without obtaining “the Consent of
Congress.” Id., ECF No. 14 ¶¶ 84-92. The President contends that
the injunctive relief sought by plaintiffs is unconstitutional,
Mot. to Dismiss, ECF No. 15-1 at 56-58; Reply, ECF No. 28 at 3134, but does not contest that injunctive relief, were it
available, would redress plaintiffs’ injury, see generally Mot.
to Dismiss, ECF No. 15-1; Reply, ECF No. 28. Whether injunctive
relief is available here is a merits determination that the
Court need not reach at this juncture, and the Court cannot
assume, for the purposes of determining whether plaintiffs have
standing, that injunctive relief would be unconstitutional.
Because the President’s alleged violation of the Clause could be
redressed by the declaratory and injunctive relief sought,
plaintiffs have satisfied the redressability component of the
standing inquiry.
V.

Conclusion
Accordingly, the Court finds that plaintiffs have standing

to sue the President for allegedly violating the Foreign
Emoluments Clause. The Court therefore DENIES IN PART the motion

57

Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 58 of 58

to dismiss and DEFERS ruling on the remaining arguments in the
motion to dismiss. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
September 28, 2018

58