Judge George Daniels of the United States District Court for the Southern District of New York has dismissed two suits filed against President Trump which argued that he violated the Constitution’s prohibition against U.S. officials receiving domestic emoluments or emoluments from foreign governments. An emolument is broadly defined as a fee, payment, profit, or some benefit. The applicable clauses in the Constitution read:
Article I, Section 9, Clause 8
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.
Article II, Section 1, Clause 7
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
The Citizens for Responsibility and Ethics in Washington (CREW) and Restaurant Opportunities Centers United (ROC United), as well as a few private citizens, argued that Trump violated these clauses due to the fact that he owns hotels and restaurants which are frequented by foreign officials. There is, however, very little case law regarding the emoluments clauses.
The particular focus of the suits was on Trump International Hotel and its restaurants in Washington, D.C. and Trump Tower and its restaurants in New York City. CREW is a watchdog organization, while ROC United is a membership organization consisting of restaurants and employees. CREW claims that foreign governments and officials have and continue to patronize Trump’s hotels, especially now that he is President. ROC claims that any patronage of Trump’s business means that their respective businesses are thereby hurt (i.e. money spent at a Trump restaurant is money not spent at their restaurants).
Judge Daniels dismissed these claims due to lack of standing, stating that the plaintiffs had not demonstrated that they were uniquely injured as a result of Trump’s actions. That is to say, any economic injury they suffered was simply the result of the common competitive landscape in the hospitality industry.
In addition, the judge stated that just because foreign governments or officials patronize Trump’s businesses, even if they do so specifically because he is President, this is not necessarily a violation of the foreign emoluments clause (Trump would need to promise some sort of benefit to foreign powers for doing so; i.e. quid pro quo).
Finally, and perhaps most significantly, he stated that it is the job of Congress to police this clause and sanction officials, such as the President, if they believe are violating it. Since Congress has tended to defer its power to the courts or the executive, this should be a wake-up call to Congress that it is on equal footing with the other two branches of government.