The Trump Library will stand tall, but the plaintiffs have no standing.
Across the early days of Donald Trump’s presidency, the Emoluments Clauses became a rapid education for the federal courts. Shortly after taking the oath, progressive groups filed lawsuits in New York, Maryland, and the District of Columbia, contending that foreign governments and states doing business with Trump properties were effectively gifting unconstitutional emoluments to the president. Seth Barrett Tillman and I contributed a number of amicus briefs at the district court, the circuit court, and up to the Supreme Court. However, the plaintiffs never pursued a preliminary injunction or any form of expedited relief. Even though they claimed these matters were urgent and that the fate of the Republic rested on halting foreign influence, they repeatedly sought extensions and continuances. In the end, the clock ran out. By the time the case reached the Supreme Court’s merits docket, Trump was out of office, and the proceedings ended more in a whimper than a resolution.
Since the start of Trump’s second term, I have waited with bated breath for suits invoking the Emoluments Clause, as well as Section 3 of the Fourteenth Amendment, another topic of scholarly interest for me. But nothing materialized. Zero. Zip. Nada. It seems the legal resistance has bigger battles to fight amid all the strategic litigation in the First Circuit.
Well, the Emoluments Clause is back in the spotlight. The Constitutional Accountability Center, which brought litigation during Trump 1.0, has sued the President for violating the Domestic Emoluments Clause. This particular case, however, does not concern businesses patronizing any current Trump property. Instead, the complaint alleges that Miami-Dade Community College and the state of Florida conferred an unconstitutional emolument by gifting land in Downtown Miami to be used for the Trump Presidential Library. The defendants include the President, the Trump Presidential Library, Governor DeSantis, Attorney General Uthmeier, and a host of other state officials.
In 2017, CAC brought suit on behalf of Senator Blumenthal and other members of Congress. That theory of standing was doomed to fail. Nine years later, CAC is invoking another theory of standing that is likewise likely to fail.
Who are the plaintiffs in this case? There are two individuals who reside near the planned site of the library in downtown Miami. They contend that the tower will block their view of Biscayne Bay, worsen traffic, degrade their “quality of life,” and reduce the value of their property.
Another plaintiff is Sistrunk Seeds, also known as Dunn’s Farm, which seeks to operate an “urban farm” in downtown Miami. Dunn maintains that it previously collaborated with Miami-Dade College and intended to construct a farm across from Biscayne Bay, but cannot because the land was given to the library. There does not appear to be any contract or binding agreement—only an expectation of future discussions. The complaint concedes as much: “The longstanding partnership between MDC and Dr. Dunn demonstrates that, at a minimum, MDC would have seriously considered Dunn’s Farm’s request for the land.” The farm also asserts a “diversion of resources” theory of standing.
Finally, there is a student at Miami-Dade College who wants to participate in the non-existent farm. The complaint states, “The emolument at issue has quashed Ms. Salcedo’s opportunity to learn urban farming and nonprofit management skills on campus for academic credit.” Perhaps she can claim standing based on some magical beans that could sprout into a beanstalk all the way to the new Trump library?
On January 22, 2017, I penned an early blog post that critiqued the standing theory in CREW v. Trump. Laurence Tribe replied swiftly. Let’s see if anyone else joins this case.
Apart from standing, the plaintiffs face a host of jurisdictional obstacles. There is no viable cause of action. They are not within the zone of interest of the Domestic Emoluments Clause. They sued the President in his official capacity. And more. Moreover, the transfer of land is not an emolument. Seth and I have written on this topic.
As of yet, the plaintiffs have not sought a preliminary injunction. As they say, the process is the punishment.
These claims will not succeed, but there would be costs to losing should the case ever ascend. I can foresee six votes on the Supreme Court to strike down diversion-of-resource standing, hold that there is no implied cause of action for alleged constitutional violations, and eliminate any sort of “offended observer” standing based on what offends you. The plaintiffs here could set civil-rights law back significantly, all in a case that appears doomed from the start. Wouldn’t it have been wiser to refrain from filing this case in the first place? Moreover, the plaintiffs ventured into unfamiliar terrain. They will not be shielded by jurists like Peter Messitte and Emmitt Sullivan, nor by appeals to the friendly Fourth and D.C. Circuits. I question the wisdom of pursuing this suit.
