Almost a week ago, the DC Court of Appeals threw out a lawsuit by two hundred out of five hundred thirty-eight congresspeople against the President, claiming that he has violated the Emoluments clause of the Constitution, because an 'institutional' gripe must be dealt with by an institution, and that a huge number of congresspeople was not an institution.

Is the Court really suggesting that the entirety of Congress has to agree that a basic and black-and-white crime like Emoluments occurred before anything can be done about it? If not, who does have standing?

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    No. This was a special case of the President - and following a ridiculous line of reasoning. For any other federal officer some prosecutor in the DOJ would bring charges, and they'd be based on something concrete, like the guy got a great deal on some real estate, or some expensive pieces of jewelry, or a title of nobility, or something like that. IOW, nearly every emoluments violation would be prosecuted like any other crime.
    – davidbak
    Feb 13 '20 at 1:42

Is the Court really suggesting that the entirety of Congress has to agree that a basic and black-and-white crime like Emoluments occurred before anything can be done about it? If not, who does have standing?

Not the entirety. A majority of either house of Congress could pass a resolution authorizing a suit; but it must be the institution and not its members.

The injury to Congress is that acceptance of emoluments requires the consent of Congress; thus, if the president benefited from the receipt of money from a foreign state, without consent, the legislature (institution) was injured.

The Congressional Research Service, The Emoluments Clauses of the U.S. Constitution, Updated February 7, 2020.

The Constitutional Provisions

The Foreign Emoluments Clause (art. I, § 9, cl. 8): “[N]o Person holding any Office of Profit or Trust under [the United States], 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.”

Purposes of the Emoluments Clauses

Each of the Emoluments Clauses has a distinct, but related, purpose. The purpose of the Foreign Emoluments Clause is to prevent corruption and limit foreign influence on federal officers. The Clause grew out of the Framers’ experience with the European custom of gift-giving to foreign diplomats, which the Articles of Confederation prohibited. Following that precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign emoluments without congressional consent.

Standing to Enforce an Alleged Violation of the Emoluments Clauses

Whether the Emoluments Clauses may be enforced through civil litigation is an open question. The doctrine of standing presents a significant limitation on the ability of public officials or private parties to seek judicial enforcement of the Emoluments Clauses. Standing is a threshold constitutional and prudential issue that concerns whether the person bringing suit has a legal right to a judicial ruling on the issues he has raised. Standing is grounded in Article III of the U.S. Constitution, which limits the exercise of federal judicial power to “cases” and “controversies.”

To establish the standing requirements of Article III, a plaintiff must identify a personal injury (referred to as an “injury-in-fact”) that is actual or imminent, concrete, and particularized. The injury must additionally be “fairly traceable” to allegedly unlawful conduct of the defendant and “likely to be redressed by the requested relief.”

Beyond these constitutional standing requirements, courts have at times recognized a set of prudential principles relevant to the standing inquiry. Because such limits are not constitutionally mandated, Congress may modify them if it does so expressly. In general, prudential principles require that the plaintiff (1) assert her own legal rights and interests (as opposed to those of a third party); (2) complain of injuries that fall within the “zone of interests” covered by the legal provision at issue; and (3) not assert what amounts to a “generalized grievance[]” more appropriately addressed by the representative branches of government.

Some Members of Congress have relied on the alleged deprivation of their opportunity to vote on the acceptance of emoluments under the Foreign Emoluments Clause.

Significant Litigation Involving the Emoluments Clauses

Finally, in Blumenthal, et al. v. Trump, No. 17-1154 (D.D.C.), 201 Members of Congress have alleged violations of the Foreign Emoluments Clause through the President’s receipt of foreign-government payments at Trump properties, foreign licensing fees, and regulatory benefits, among other things. President Trump moved to dismiss on the grounds that the plaintiffs lack standing and that he has not received any prohibited “emoluments.” On September 28, 2018, the district court ruled that the plaintiffs have standing, reasoning that these Members of Congress suffered an injury-in-fact through the deprivation of a voting opportunity under the Foreign Emoluments Clause.

On April 30, 2019, the district court held that the plaintiffs had stated a claim against the President. On August 21, 2019, the district court certified an immediate appeal and stayed the case pending appeal. On February 7, 2020, the D.C. Circuit reversed the district court’s standing decision, holding that the Members lacked standing to sue because individual Members of Congress may not sue based on alleged institutional injury to the legislature as a whole. The D.C. Circuit therefore vacated the district court’s decision on the merits and remanded with instructions to dismiss the complaint.

There are no court opinions, before Trump became president, concerning violations of the foreign emoluments clause. See: Clause 8.

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    So the court is saying that as long as you have a majority, and you have your team onside, you can do whatever you want?
    – Jontia
    Feb 12 '20 at 15:55
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    Why is the injury to the legislature other than in the most general sense via checks and balances? Profiting from one's office is an affront to the office itself.
    – Carduus
    Feb 12 '20 at 16:19
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    @Carduus - to avoid a never-ending stream of political nuisance suits or complaints, it is the role of Congress, as a co-equal branch, to police that and determine when it warrants action. Feb 12 '20 at 19:47
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    @PoloHoleSet So why don't they immediately refile now that they have the majority? Feb 12 '20 at 19:57
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    @SurpriseDog - You've got me with that one. Trump might be gone before the courts allow them to discover anything? If so, then the Justice Department can get any relevant documents and investigate without running up against executive obstruction. If he stays in, the political liability for doubling down after losing a case will make it seem like spite, since it's clear nothing will come of it, no matter what. So instead of throwing extra motivation on the table for his base, they wait and see if Trump is elected and what the Senate looks like in January, would be my guess. Feb 12 '20 at 20:15

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