Plaintiffs Citizens for Responsibility and Ethics in Washington (“CREW”), Restaurant Opportunities Centers United, Inc. (“ROC United”), Jill Phaneuf, and Eric Goode (collectively, “Plaintiffs”), bring this suit against Defendant Donald J. Trump, in his official capacity as President of the United States. (Second Amended Complaint (“SAC”), ECF No. 28, at 1.) Plaintiffs principally allege that Defendant’s “vast, complicated, and secret” business interests are creating conflicts of .interest and have resulted in unprecedented government influence in, violation of the Domestic and Foreign Emoluments Clauses of the United States Constitution. (SAC ¶ 1 (citing U.S. Const, art. I, § 9, cl. 8 & art. II, § 1, cl. 7, respectively).) Plaintiffs seek (i) a declaratory judgment declaring that Defendant has violated and will continue to violate the Domestic and Foreign Emoluments Clauses; (ii) an injunction enjoining Defendant from ' violating the Emoluments Clauses; and (iii) an injunction requiring Defendant to release financial records in order to confirm that he is not engaging in further transactions that would violate the Emoluments Clauses. (Id. ¶ 20.)
' Defendant argues that Plaintiffs lack standing to sue and moves to dismiss this lawsuit for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(1). (Def.’s Mot. to Dismiss, ECF No. 34; Def.’s Mem. of Law in S'upp. of Mot. to Dismiss (“Mot.”), ECF No. 35, at 7.) Defendant also moves to dismiss this case for failure to state a claim under the Emoluments Clauses pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). (See Mot. at 26.)
Defendant’s motion to dismiss for lack of standing under Rule 12(b)(1) is GRANTED.
A. The Parties
Plaintiff CREW is a nonprofit, nonpartisan government ethics watchdog organized under the laws of the State of Delaware. (SAC ¶ 21.) CREW’s self-proclaimed mission is to “protect[ ] the rights of citizens to be informed about the activities of government officials, ensur[e] the integrity of government officials, protect[ ] [the] political system against corruption, and reduc[e] the influence of money in politics.” (Id.) It seeks to advance that mission through a combination of research, advocacy, litigation, and education, all aimed at raising public awareness about the influence of outside special interests on public officials. (Id. ¶22.) For instance, CREW, is involved in a project relating to campaign finance and ethics at the state-level, ,as well as researching and filing comments with government agencies related to rulemakings and other regulatory actions, .and preparing reports on “money-in-politics issues.” (Id. ¶¶ 166-67, 171.) CREW also analyzes tax returns of nonprofit groups engaged in political activities and publishes blog posts and reports to educate the public. (Id. ¶ 173.) In addition, during the last several election cycles, CREW has filed numerous administrative complaints with the Federal Election Commission and the Department of Justice alleging violations of, campaign finance laws. (Id. ¶ 164.)
Plaintiff ROC United is a nonprofit, nonpartisan member-based organization organized under the laws of the State of New York. (Id. ¶28.) ROC United’s members include nearly 25,000 restaurant employees, over 200 restaurants, and about 3,000 other dining establishments. (Id. If11.) ROC United provides “job training, placement, leadership development, civic engagement, legal support, and policy advocacy” to help improve working conditions in the food service industry. (Id.) Through its RAISE project, ROC United works with restaurant owners to implement sustainable business models that support “high road” employer practices such as paying living wages, providing basic benefits, being environmentally sustainable, and providing safe and healthy workplaces. (Id. ¶ 181.) ROC United also owns and operates a restaurant in New York City and another in Detroit, with a forthcoming location in Washington, D.C. (Id. ¶ 28.)
Plaintiff Jill Phaneuf, a resident of Washington D.C., works with a hospitality company to book embassy functions and other events tied tó foreign governments, as well as other events “in the Washington, D.C. market.” (Id, ¶ 15.) In particular, Phaneuf books events for two Washington D.C. hotels—the Carlyle Hotel, located just north of Dupont Circle, and the Glover Park Hotel, located near the area that is colloquially referred to “Embassy Row.” (Id. ¶ 15.) Phaneuf alleges that her compensation consists of a percentage of the gross receipts of the events she books. (Id.) '
Plaintiff Eric Goode is a New York resident and the owner of several hotels, restaurants, bars, and event spaces in New York City. (Id. ¶ 18.) He owns the Maritime Hotel located in the Chelsea neighborhood, the Bowery Hotel and Ludlow Hotel, both of wh'ich are located’ in the Lower East Side, and the Jane Hotel in the Meatpacking District. (Id.) Goode also owns several restaurants located in the Bowery Hotel. (Id.) Goode alleges that his hotels and restaurants have typically attracted business from foreign governments, as well as from federal and state
Defendant Donald J. Trump is the President of the United States of America. Before he was elected President, Defendant amassed ownership and controlling interests in businesses throughout the country and around the world. Defendant is the sole owner of the Trump Organization LLC and The Trump Organization, Inc. (collectively, the “Trump Organization”). (Id. ¶ 42.) Defendant’s corporations, limited-liability companies, limited partnerships, and other entities are loosely organized under the Trump Organization. (Id.)
On January 11, 2017, Defendant, then-President-elect, announced that he would turn over the “leadership and management” of the Trump Organization to his sons, Donald Trump, Jr. and Eric Trump. (Id. ¶43.) Defendant also announced that he would donate all profits from foreign governments’ patronage of his businesses to the U.S. Treasury. (Id.-, see also Donald Tramp’s News Conferenee: Full Transcript and Video,' N.Y. Times (Jan. 11, 2017), http://nyti.ms/2jG86w8.) Although Defendant had established a trust to hold his business assets,’ Plaintiffs allege that Defendant continues to own and is permitted to take distributions from the trust at any time. (SAC ¶ 44.) Plaintiffs allege that Defendant continues to be informed of the Trump Organization’s business activities and that Eric Trump provides business updates to Defendant on a quarterly basis. (Id.)
Through his various business entities, Defendant owns and receives payments from a number of properties and restaurant establishments in the United States. Of particular relevance herb, Defendant owns the Trump International Hotel in Washington, D.C., and the BLT Prime, a restaurant located inside the hotel. (Id. ¶¶.58-59.) He also owns Trump .World Tower, a condominium high-rise building in.New York City located.near the United Nations. (Id. ¶ 90.) Trump Tower, a mixed-use skyscraper in New York. City, and Trump Grill, a restaurant- located inside the tower, are also among'the properties owned by Defendant. (Id. ¶¶ 46-47, 66.)
B. Defendant’s Alleged Violations of the Domestic and Foreign Emoluments Clauses
Plaintiffs állege that since Defendant’s inauguration' earlier this year, he has violated and continues to violate the Domestic and Foreign Emoluments Clauses of the Constitution due to the ownership and controlling interests he continues to hold in the Trump Organization and other entities, and the monies he receives as a result. (Id. ¶¶ 7, 42.)
The Domestic Emoluments Clause states that “[t]he President shall, at stated Times, receive for his Services, a Compen-sátion, which shall neither be encreased 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.” U.S. Const, art. II, § fi-el. 7. That clause provides thát the president’s compensation for his service's' as president shall not change during his term in office, and prohibits him from drawing any additional compensation or salary from the federal or state governments.
The Foreign Emoluments Clause states in pertinent part that “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. That clause provides that certain federal.government officials shall not receive any form of gift or
Plaintiffs point to a number of examples of alleged violations of both the Domestic and Foreign Emoluments Clauses. For example, Plaintiffs allege that after the 2016 election, and under pressure from the Trump Organization, the Embassy of Kuwait in Washington D.C. moved its National Day celebration from the Four Seasons Hotel to the Trump International Hotel, spending an estimated $40,000 to $60,000 for the event. (SAC ¶¶ 72-74.) Other foreign diplomats and their agents have publicly expressed a desire to patronize the Trump International Hotel and other properties owned by Defendant tp curry favor with the President. (Id. ¶¶ 57-89.) One press account quoted a “Middle Eastern diplomat” as saying, “[b]elieve me, all the delegations will go” to the Trump International Hotel. (Id. ¶ 62.) The same account quoted an “Asian diplomat” who explained, “[w]hy wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, T love your new hotel!’ Isn’t it rude to come to his city and say, T am staying at your competitor?’ ” (Id.)
Plaintiffs allege that, over the last two decades, the Kingdom of Saudi Arabia, as well as the Permanent Missions to the United Nations from India, Afghanistan, and Qatar purchased property at the Trump World Tower, paying anywhere from $4.5 million up to $8,375 million. (Id. ¶¶ 90-106.) Plaintiffs believe that these foreign entities continue to pay yearly common charges for building amenities amounting to tens of thousands of dollars each year. (Id.) Plaintiffs point out that none of these countries were included in Defendant’s original or revised executive orders barring visitors from six Muslim-majority countries. (Id. ¶ 110.)
Plaintiffs allege that since 2006, Defendant has unsuccessfully sought trademark protection in China for the use of his name in connection with building construction services. After his application was rejected by China’s Trademark Office, Defendant appealed to the Trademark Review and Adjudication Board, the Beijing Intermediate People’s Court, and the Beijing High People’s Court, to no avail. (Id. ¶ 111.) In December 2016, shortly after he was elected, Defendant spoke directly with the President of Taiwan, suggesting that the United States might abandon the “One China” policy that it had observed for decades. According to Plaintiffs, Defendant had previously suggested he would end the “One China” policy unless some benefit were received in exchange. (Id. ¶ 112.) On February 9, 2017, Defendant spoke with the President of China and pledged to honor the “One China” policy. Five days later, China reversed course and granted trademark protection for the “Trump” name. (Id. ¶¶ 113-14.) Plaintiffs also allege that the Industrial and Commercial Bank of China, a Chinese majority-state-owned entity, is one of the largest tenants of Trump Tower. (Id. ¶ 49.)
Plaintiffs allege that the Trump International Hotel’s lease with the General Services Administration (“GSA”)—an independent agency of the United States, whose administrator is appointed by the president—violates the Domestic Emoluments Clause. (Id. ¶¶ 130-44.) Prior to taking office, GSA entered into a 60-year lease for what eventually became the site for the Trump International Hotel. (Id. ¶¶ ISO-31.) Section 37.19 of the lease agreement provides that “[n]o ... elected official of the Government of the United States ... shall be admitted to any share or part of
Additionally, Plaintiffs contend that Defendant has also benefitted and will continue to benefit from payments to his hotels and restaurants by foreign governments and their agents, as well as federal, state, and local government officials. (Id. ¶¶ 200-01.)
Plaintiffs assert that they are injured by Defendant’s alleged violations of the Emoluments Clauses. Phaneuf and Goode allege that due to Defendant’s ongoing financial interest in hotels and restaurants receiving payments from governmental sources, they will suffer increased competition resulting in “loss of commission-based income” and' “loss of revenue[.]” (See id. ¶¶225, 227, 234.) Similarly, ROC United alleges that its restaurant and restaurant-employee members'have suffered injury in the form of “lost business, wages, and tips.” (Id. ¶ 13.) CREW claims-it has-been harmed by having to divert and expend its resources to counteract the alleged violations, impairing its ability to accomplish its mission. (Id. ¶ 153.)
II. LEGAL STANDARD UNDER FEDERAL RULE OP CIVIL PROCEDURE 12(b)(1)
“Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd.,
In deciding a motion to dismiss “pursuant to Rule 12(b)(1), ... the Court must accept as true all material factual allegations in the complaint, but should refrain from drawing any inferences in favor of the party -asserting jurisdiction.” People United for Children, Inc. v. City of New York,
III. STANDING
Central to the question of whether this Court has subject-matter jurisdiction over- this case is whether Plaintiffs have legal standing to sue. See Cortlandt St. Recovery Corp. v. Hellas Telecomms. I, S.a.r.l,
The “irreducible constitutional minimum of standing” consists of-three elements: “(1) ‘an injury in fact’ to ‘a legally protected interest’ that is both ‘(a) concrete and particularized, and (b)- actual or imminent, not conjectural or hypothetical,’ (2) ‘a causal connection between the injury and the conduct complained of,’ and (3) that it is ‘likely, as opposed to merely speculative, that- the injury will be redressed by a favorable decision.’ ” Crupar-Weinmann v. Paris Baguette Am., Inc.,
A. ROC. United, Phaneuf, and Goode Lack Article III Standing
Defendant contends that Plaintiffs ROC United, Phaneuf, and Goode (the “Hospitality Plaintiffs”) lack standing to bring their claims and that their alleged injuries do not fall within the zone of interests of the Emoluments Clauses. (Mot. at 8-26.)
1. The Hospitality Plaintiffs’ Competitor Standing Argument Fails
The Hospitality Plaintiffs attempt to rely on the competitor standing doctrine to establish injury in fact. Defendant argues that these Plaintiffs lack competitor standing because they fail to establish .that the challenged governmental ' activity has caused “an actual or imminent increase in competition, which increase ... will almost certainly cause an injury in fact.” (Mot. at 20-21 (citing Sherley v. Sebelius,
“The Supreme Court has found cognizable injuries to economic competitors.” In re U.S. Catholic Conference,
The doctrine traces its origin to a time when financial institutions started diversifying their service offerings and began competing with firms that had traditionally provided those services. For instance, in Data Processing, an association of data processing service providers challenged a ruling by the Comptroller of the Currency of the United States allowing banks to provide such services and compete in the same market.
The Hospitality Plaintiffs argue that the competitor standing doctrine only requires a plaintiff to “‘show that he personally competes in the same .arena’ with the party to whom the defendant has unlawfully bestowed a benefit.” (Pis.’ Mem. of Law in' Opp’n to Mot. (“Opp’n”), ECF No. 57, at 11.) They allege that they compete for government business in the Washington D.C. and New York City restaurant and hotel markets and that they have and will be harmed “due to foreign states, the United States, or state or local governments patronizing establishments with financial connections to Defendant rather than” Plaintiffs. (See SAC ¶¶ 13, 17, 19, 194, 198, 227, 234.) Defendant argues that the Hospitality Plaintiffs’ allegations are far too speculative to give rise to competitor standing arid that they have failed to sufficiently allege that they - “personally compete[]” with Defendant’s hotels and restaurants. (Mot. at 21 (citing U.S. Catholic Conference,
Plaintiffs have, failed to properly allege that Defendant’s actions caused Plaintiffs competitive injury and that such an injury is redressable by this Court. As noted, Article III “requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant,” and for which “prospective relief will remove the harm.” Simon v. E. Ky. Welfare Rights Org.,
In Simon, the plaintiffs were indigent individuals and .organizations representing indigents who challenged an IRS rule allowing favorable tax treatment to a nonprofit hospital that -only offered emergency-room services to indigents.
Here, the Hospitality Plaintiffs argue that Defendant has adopted “policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection.” (Opp’n at 16 (emphasis added).) Yet, as in Simon, it is wholly speculative whether the Hospitality Plaintiffs’ loss of business is fairly traceable to Defendant’s “incentives” or instead results from government officials’ independent desire to patronize Defendant’s businesses. Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President. As such, despite any alleged violation on Defendant’s part, the Hospitality Plaintiffs may face a tougher competitive market overall. Aside from Defendant’s public profile, there are a number of reasons why patrons may choose to visit Defendant’s hotels and restaurants including service, quality, location, price and other factors related to individual preference. Therefore, the connection between the Hospitality Plaintiffs’ alleged injury and Defendant’s actions is too tenuous to satisfy Article Ill’s causation requirement. Bennett v. Spear,
Moreover, the Hospitality Plaintiffs cannot establish “that it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Bennett,
Plaintiffs are likely facing an increase in competition in their respective markets for business from all types of customers— government and non-government customers alike—and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition. Were Defendant not to personally accept any income from government business, this Court would have no power to lessen the competition inherent in any patron’s choice of hotel or restaurant. As explained more fully below, the Emoluments Clauses prohibit Defendant from receiving gifts and emoluments. They do not prohibit Defendant’s businesses from competing directly .with the Hospitality Plaintiffs. Furthermore, notwithstanding an injunction from this Court, Congress
Thus, while a court order enjoining Defendant may stop his alleged constitutional violations, it would not ultimately redress the Hospitality Plaintiffs’ alleged competitive injuries.
2. The Hospitality Plaintiffs’ Competitive Injuries Do Not Fall Within the Zone of Interests of the Emoluments Clauses
The zone of interests doctrine demonstrates that the Hospitality Plaintiffs are not the right parties to bring a claim under the Emoluments Clauses. Beyond the Article III requirerhents, “the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” Valley Forge Christian Coll v. Ams. United for Separation of Church and State, Inc.,
Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition. The prohibitions contained in these Clauses arose from the Framers’ concern with protecting the new government from corruption and undue influence. Indeed, at the time of the Founding, the new republic was conscious of the European custom of bestowing gifts and money on foreign officials. The Framers, who fought a war to gain their independence. from British rule, wanted government officials to avoid future undue influence. As Edmund J. Randolph explained at the Virginia Ratifying Convention, .
The [Foreign Emoluments Clause] restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state... •. This restriction is provided to prevent corruption.
The Framers were not only concerned with foreign corruption, but they were also wary of undue influence from within. To ensure the president’s independence from the states and additional financial incentives from the federal government, the Framers included in the Constitution the Domestic Emoluments Clause. That clause was meant to ensure that the president has “no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.” The Federalist No. 73 (Alexander Hamilton). Evidently, the Framers were concerned that
[T]he legislature, with a discretionary power over the salary and emoluments of the [president], could render him as obsequious to their will as they might think proper to make him. They might, ■in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations.
Id. The Clause also helps to ensure presidential impartiality among the states given that “[n]either the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have .been determined by the first act.” Id.
Given this history, there can be no doubt that the intended purpose of the Foreign Emoluments Clause was to prevent official corruption and foreign influence, while the Domestic Emoluments Clause was meant to ensure presidential independence. Therefore, the Hospitality Plaintiffs’ theory that the Clauses protect them from increased competition in the market for government business must be rejected, especially when (1)' the Clauses offer no protection from increased competition in the market for non-government. business and (2) with Congressional consent,. the Constitution allows federal officials to accept foreign gifts and emoluments, regardless of its effect on competition. With Congress’s consent, the Hospitality Plaintiffs could still face increased competition in the market for foreign government business but would have no cognizable claim to redress in court. There is simply no basis to conclude that .the Hospitality Plaintiffs’ alleged competitive injury falls within the zone of interests that the Emoluments Clauses sought to protect.
The Hospitality Plaintiffs therefore lack Article III standing.
B. CREW Fails to Adequately Allege an Injury In Fact
Defendant contends that Plaintiff CREW’S claims should be dismissed because it has failed to adequately allege an injury in fact and thus also lacks standing to sue. (Mot. at 8.) An organization like CREW can have standing in one of two ways. As noted, an organization may have associational standing to sue, on behalf of its members if some particular member of the organization would have had standing to bring the suit individually. N.Y. Civil Liberties Union v. N.Y.C. Transit Auth.,
CREW does not allege that it has any members whose interests it seeks to represent here, nor does it otherwise purport to have associational standing. Rather, it asserts it has standing to bring this action because it suffers an injury in its own right, namely a “diversion!] of CREW’s communications, legal, and research resources ... and [the] impairment of its programmatic functions.” (Opp’n at 27.) CREW claims that by accepting payments to his businesses that are “rarely public,” Defendant has deprived it' of information concerning the financial support he receives from various governmental sources, “necessitating time consuming,' more expensive, and less effective research to maintain its work.” (Id.) 'CREW also asserts that it has had to devote significant resources to identify and counteract Defendant’s alleged violations of the Emoluments Clauses, including through the use of “every member of CREW’s research team on a near-daily basis” and “the hiring of two additional senior attorneys,” as well as its efforts to explain the alleged violations to stakeholders, including the press, and assist and counsel others in counteracting Defendant’s alleged violations. (Id. at 28.) CREW claims that these expenditures have all come “at the detriment of CREW’s efforts to perform mission-critical work that it would otherwise perform.” (Id.)
Defendant argues that CREW lacks standing because it fails to allege sufficient injury in fact resulting from Defendant’s alleged violations of the Emoluments Clauses. (Mot. at 8.) In particular, Defendant claims that CREW’s voluntary diversion of resources, and the type of injury it claims to have suffered as a result, is “self-inflicted” and too abstract to confer standing. (Id. at 8-9.)
CREW’s organizational standing argument relies principally on the Súpreme Court’s decision in Havens Realty Corp. v. Coleman,
Following Havens, the Second Circuit has held that an organization has standing where the defendant’s conduct or policy interferes with or burdens an organization’s ability to carry out its usual activities. See, e.g., Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay,
Other Second Circuit decisions have extended Havens beyond the circumstance where an organization’s activities are impaired per se. Those cases establish that an organization has standing where it is forced to expend resources to prevent some adverse or harmful consequence on a well-defined and particularized class of individuals. See, e.g., Centro,
Here, CREW fails to allege either that Defendant’s actions have impeded its ability to perform a particular mission-related activity, or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant’s conduct. As noted, the plaintiff organizations in the cases cited by CREW were all driven to expend resources they would not have otherwise spent to avert or remedy some harm to a definable class of protected interests—for example, the right of individuals to pursue -housing free from discrimination, or of day laborers to solicit employment—caused by the defendant’s actions or policies. CREW, by contrast, may have diverted some of its resources to address conduct it may consider unconstitutional, but which has caused no legally cognizable adverse consequences, tangible or otherwise, necessitating the expenditure of organizational
To be sure, CREW alleges that the time, money, and attention it has diverted to this litigation from other projects. have placed a significant drain on its limited resources. But such an allegation, by itself, is insufficient to Establish an injury in fact. CREW’s decision to investigate and challenge Defendant’s actions under the Domestic and Foreign Emoluments Clauses at the expense of its other initia-fives reflects a choice about where and how to allocate its resources—one that almost all organizations with finite resources have to make.
Moreover, CREW’s entire reason for being is to investigate and combat corruption and reduce the influence of money in politics through, among other things, education, advocacy, and litigation. (Id. ¶¶ 21-22.) CREW is thus not wasting resources by educating the public and issuing statements concerning the effects of Defendant’s alleged constitutional violations or even by filing suit; this is exactly how an organization like CREW spends its resources in the ordinary
The Second Circuit’s decision in Ragin v. Harry Macklowe Real Estate Co.,
Nnebe v. Daus,
Unlike the plaintiff organization in Nnebe, CREW did not expend resources in response to an “unbidden injury.” Centro,
IV. PRUDENTIAL CONSIDERATIONS
In addition to the other grounds upon which he seeks dismissal, Defendant argues that Plaintiffs’ claims under the Foreign Emoluments Clause should be dismissed for certain .prudential reasons. First, Defendant argues that Plaintiffs’ claims are better left resolved through the “political process,” rather than the courts, because Congress is “far better equipped” to address whether Defendant’s particular activities violate the Foreign Emoluments Clause. (Opp’n at 50.) Defendant points out that Congress has more tools at its disposal, including the ability to legislate and consent to Foreign Emoluments Clause violations. (Id.)
Defendant seems to argue, without explicitly stating so, that the “political question” doctrine bars Plaintiffs’ claims. The doctrine would suggest that Plaintiffs’ suit presents a political issue that should be resolved between Congress and the President,- without any preemptive interference from the Judiciary.
Plaintiffs’ Foreign Emoluments Clause claims do implicate political question concerns. The political question doctrine has its roots in the separation of powers and is ultimately a doctrine of jus-ticiability. It bars courts from deciding cases that are inappropriate for judicial resolution based’ on a lack of judicial authority or competence, or other prudential considerations. As originally articulated by the Supreme Court in Baker v. Carr, a case may be dismissed on the basis of the political question doctrine if there exists: “[1] a textually demonstrable constitutional commitment of the issue [at hand] to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility» of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
Each of these factors may serve as an independent ground for dismissal. See Vieth v. Jubelirer,
Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the Foreign Emoluments Clause makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power. If Congress
Defendant also suggests that Plaintiffs’ case should be dismissed because Congress has yet to take any action with respect to Defendant’s alleged violations of the Foreign Emoluments Clause. Defendant notes that if Congress wanted to do something about Defendant’s conduct, it could. (Opp’n at 50.) Congress could, for example, enact legislation codifying its views by statute or expand the Constitution’s conflict-of-interest protections. (Id.) But, because Congress has yet to take any action with respect to Defendant’s alleged violations, Defendant contends that Plaintiffs’ Foreign Emoluments Clause claims are premature. (See id.)
Plaintiffs’ Foreign Emoluments Clause claims are indeed not ripe for judicial review. Ripeness is a different justiciability doctrine designed to prevent' courts from prematurely adjudicating cases. See Abbott Labs v. Gardner,
In remanding the case with instructions to dismiss the complaint, Justice Powell stated that “a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority.” Goldwater,
Here, Plaintiffs’ suit implicates a similar concern regarding a conflict between two co-equal branches of government that has yet to mature. As indicated earlier, the Foreign Emoluments Clause makes clear that Congress, and Congress alone, has the authority to consent to violations of that clause. Plaintiffs’ principal allegation is that Defendant has completely ignored this balance of power by continuing to accept emoluments without Congressional approval. (SAC ¶¶ 39-42.) As such, this case involves a conflict between Congress and the President in which this Court should not interfere unless and until Congress has asserted its authority and taken
At this stage, it would be “both premature and presumptuous for [a court] to render a decision on the issue of [whether Congress’s consent] is required at this time or in the near future when ... Congress itself has provided no indication whether it deems such [consent] either necessary, on the one hand, or imprudent, on the other.” Dellums v. Bush,
V. CONCLUSION
Defendant’s motion to dismiss is GRANTED. Accordingly, Plaintiffs’ claims and this case are DISMISSED.
SO ORDERED.
Notes
. Because Plaintiffs’ claims are dismissed under Rule 12(b)(1), this Court does not reach the issue of whether Plaintiffs’ allegations state a cause of action under either the Domestic or Foreign Emoluments Clauses, pursuant to Rule 12(b)(6). Nor does this Court address whether the payments at issue would constitute an emolument prohibited by either Clause. . .
. For purposes of this motion, Defendant has conceded that he is subject to the Foreign Emoluments Clause. (See Tr. of Oral. Arg., ECF No. 99, at 94:11-13; Ltr. to the Ct. from Brett A. Shumate dated October 25, 2017, ECF No. 98.)
. For example, even if Defendant honored his pledge to establish a trust and donate all profits from foreign governments' business to the U.S." Treasury, (Mot. at 5; see also SAC ¶¶ 43-44), foreign government officials may still patronize Defendant's restaurants and hotels.
. ROC United contends that it has associational standing to bring this lawsuit because it has alleged that its members have been “injured by the [Defendant's distortion of competition.” (Opp’n fit 24-25.) To have associational standing, a‘plaintiff organization must meet the following requirements: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and'(c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n,
. Although CREW’s co-plaintiffs allege personal harm in the form of increased competition, as explained above, those injuries are not legally cognizable since they are neither fairly traceable to Defendant’s conduct, nor are they capable of being redressed by a favorable decision on the merits. Moreover, as explained above, the harm they allege falls outside the Emoluments Clauses’ zone of interests since increased competition is not an - interest that those Clauses were designed to protect. See Part III.A.2.
. Similarly unavailing are CREW’s allegations that it has had to expend resources responding to. press inquiries. Again, those allegations concerning where and how CREW allocates its resources are insufficient to constitute a legally cognizable injury in fact insofar as they are entirely self-inflicted and not borne out of .CREW’s need to remedy any particular adverse consequence or harmful effect of Defendant’s conduct.
. Subsequent cases have followed Justice Powell’s reasoning in Goldwater in dismissing a case on ripeness grounds. See, e.g., Sanchez-Espinoza v. Reagan,
. Congress is not a potted plant. It is a coequal branch of the federal government with the power to act as a body in response to Defendant’s alleged Foreign Emoluments Clause violations, if it chooses to do so.