Who Can Sue the President?

Judge Considers Whether Members of Congress Can Go to Court to Force Donald Trump to Follow the Constitution

A federal judge in Washington is pondering a fundamental question about the U.S. Constitution this week: Short of impeachment, can a president who flouts the Constitution be held accountable by members of Congress and the courts?

More than 200 members of Congress, the most ever to sue a president, say he can. They want U.S. District Judge Emmet Sullivan to order a trial in Blumenthal, Nadler, et al. v. Trump, their suit charging President Trump with violating the Foreign Emoluments Clause of the Constitution by failing to seek congressional approval before accepting gifts from foreign governments.

The question since the beginning of Trump’s presidency is if his refusal to divest from the hotels, office buildings and resorts that carry the Trump brand causes him to act in his own best interest, instead of America’s, on policy decisions.

Trump and his defense argued to Sullivan last week that the issue of emoluments can be solved through the political process and should be kept out of the courtroom. However, the plaintiffs asserted that they and other members of Congress were denied their constitutionally promised right to vote on the issue.  The members said they see no adequate remedy other than intervention by the courts to force Trump to come to Congress and disclose his emoluments.

If the court decides these members lack standing, there may be no plaintiff who can hold Trump accountable for violations of the Constitution. Businesses and individuals can sue, but they can bring only cases alleging specific damage to them rather that larger complaints about constitutional violations. A Maryland court heard arguments today in a suit charging that foreign business at the Trump International Hotel in downtown Washington has damaged other hoteliers in Maryland and the District of Columbia.

Sullivan has not announced when he will release his decision. A ruling that the lawmakers lack standing would have catastrophic implications for our democracy.

If the judicial branch does not allow the legislative branch the opportunity to question executive power, the courts disregard the system of checks and balances in the Constitution. As Blumenthal and Nadler warned in a news release after last week’s arguments, “If the court does not uphold the law in our case, the Constitution’s premier anti-corruption provision is dead letter.”

Jane Hood and Lily Oberstein are Common Cause interns.