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.
