The Trump Justice Department has told a federal district court in New York that it lacks jurisdiction to hear the claims of plaintiffs who are challenging the President’s violations of the Emoluments Clauses in Citizens for Responsibility and Ethics in Washington v. Trump. On Friday, we and 19 other scholars of administrative law, constitutional law, and federal jurisdiction joined an amicus brief explaining why the Trump administration’s arguments miss the mark. The brief, filed by New York attorneys Andrea Likwornik Weissand Gregory Felt, is available here, and you can see a full list of amici in the appendix. As we conclude: “Under settled Supreme Court and Second Circuit case law, the plaintiffs easily clear the constitutional and prudential hurdles to the adjudication of their substantive claims.”

Our brief only addresses whether the district court should resolve the case on the merits; other amicus briefs (from legal historians, members of Congress, former government ethics officers, and a leading scholar of public corruption) address the substance of the plaintiffs’ claims under the Emoluments Clauses. That might make the arguments in our brief seem like a sideshow to the main act, but we think they’re more than that—for two reasons. First, the Justice Department spends more than half of the argument section in its motion to dismiss urging the district court to dismiss the case on justiciability grounds. That is, the administration’s primary strategy is to try to make the case go away before the district court considers the merits. Second, if the district court reaches the merits, it will confront a mountain of historical evidence indicating that payments to President Trump’s businesses from foreign and domestic government clients fall within the meaning of the word “emolument” as the founding generation would have understood it. Thus, if Trump loses the fight over justiciability, he will have a very tough time winning the next round.

But the Trump administration’s efforts to have the case tossed on justiciability grounds run into another sort of obstacle—clear-cut case law. Three of the plaintiffs (New York hotel owner Eric Goode, D.C.-based events booker Jill Phaneuf, and restaurant industry association ROC United) have claims that are justiciable under the well-settled doctrine of competitor standing. The Supreme Court’s competitor standing doctrine allows individuals and firms to challenge the legality of actions that provide a competitive advantage to other businesses in the same market. Goode, Phaneuf, and ROC United’s members all personally compete in the same arena as Trump’s hotels and restaurants, and thus have standing to sue Trump in order to stop his businesses from enjoying an illegal advantage.

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