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Dems face setback challenging Trump's emoluments problem

There are multiple lawsuits challenging Donald Trump's emoluments problem, and one of them suffered a significant setback this morning.
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Trump International Hotel in Washington.Alex Brandon / AP

There are multiple lawsuits challenging Donald Trump's emoluments problem, and one of them suffered a significant setback this morning.

A federal appeals court on Friday dismissed Democratic lawmakers' lawsuit against President Donald Trump alleging he has violated the emoluments clause of the U.S. Constitution on technical grounds.

In the ruling, the three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia found the members of Congress did not have legal standing to bring the lawsuit against the president for violating the clause, which bars federal officials from collecting payments from foreign governments without the approval of Congress.

In their unsigned ruling, the judges cited Supreme Court precedent, noting the 215 lawmakers on the lawsuit are not the majority of Congress, and that they might have had standing if they had filed the suit as a majority. "[O]nly an institution can assert an institutional injury," the ruling says.

That makes it sound as if the U.S. House, currently led by a Democratic majority, were to re-file the case, the D.C. Circuit would be more inclined to consider the challenge on the merits.

The unanimous three-judge panel included a George H. W. Bush appointee, a Bill Clinton appointee, and a George W. Bush appointee.

For those who may be new to the story, the U.S. Constitution includes provision, which used to be far more obscure, known as the "Emoluments Clause." As regular readers know, the provision is pretty straightforward: U.S. officials are prohibited from receiving payments from foreign governments. Traditionally, this hasn't been much of a problem for sitting American presidents – but with Donald Trump things are a little different.

This president has refused to divest from his private-sector enterprises, which means he continues to personally profit from businesses that receive payments from foreign governments. The problem isn't just theoretical: plenty of foreign officials and representatives of foreign governments have spent money at Trump's properties, indirectly putting money in his pocket.

The Republican has described the constitutional provision as "phony," though I'm not altogether sure what he thinks that means. (The provision is, in reality, in the Constitution. There's nothing phony about it.)

Trump briefly celebrated the ruling during a Q&A with reporters this morning, describing the decision as "a total win." As is usually the case, that's not quite right: the appellate court didn't rule on the merits.

What's more, it's not the only pending case. The 4th Circuit Court of Appeals is considering a related challenge brought by the attorneys general of Maryland and the District of Columbia, while the 2nd Circuit Court of Appeals is also weighing a lawsuit filed by New York hospitality business owners.

There was, incidentally, a fourth emoluments case brought by a wine bar in D.C., but it was tossed out in late 2018.

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