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07/12/2017

More Emoluments Originalism
Michael Ramsey

At Lawfare, Jane Chong, Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?

On the originalist aspect of the debate: 

A threshold issue before turning to the OLC literature is the confusion created by cherry-picking historical materials without consideration of their factual context. For example, in its motion to dismiss, the Justice Department followed the lead of some scholars in pulling some Supreme Court language that suggests the term “emoluments” applies only to salary and other duty-related benefits. Most notably, in Hoyt v. United States, 51 U.S. 109 (1850), the Court defines emoluments as “every species of compensation or pecuniary profit derived for a discharge of the duties of office” (emphasis added).

But in Hoyt, the Supreme Court was specifically asked to decide what constitutes an “emolument of office” per a statute governing Treasury Department collectors in their official capacity; the case did not require the Court to consider or rule on the existence of emoluments of other kinds. This is a key point for purposes of properly construing any Comptroller or OLC opinion that cites Hoyt and regurgitates its definition of “emoluments.” These opinions, like Hoyt, have to be read with an eye to their facts: they do not assert that “emoluments” must derive directly from discharge of duty; rather, the kind of emoluments at issue in those opinions was the kind derived for discharge of duty. As a consequence, the reliance on Hoyt in these opinions does not serve as evidence of a limiting principle for emoluments in general.

In short, as pointed out by the plaintiffs and by assorted scholars, the proper question for purposes of discerning the historical scope of “emoluments” is not whether the term could be interpreted in a restricted way, to refer only to benefits derived from discharging the duties of an office, but whether it was necessarily so interpreted at the time the Emoluments Clauses were drafted. As John Mikhail haspainstakingly documented, the answer is no—and we don’t have to look at secondary sources, however authoritative (e.g., Black’s Dictionary) to draw that conclusion. Consider, for example, some of the constitutions ratified during the first of two major waves of state constitution-making in the Founding decade. Several included “common benefits clauses” that used the word “emoluments” in a way that simply defies narrow interpretation. The Pennsylvania Constitution (1776) provides: “That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument of advantage of any single man, family or sett [sic] of men, who are a part only of that community[.]” Very similar language appears in the Virginia (1776), Vermont (1777), and New Hampshire (1784) constitutions. Far more elaborate historical arguments demonstrating the broad uses of the term have been presented elsewhere: see here,here and here. The bottom line is that there is an abundance of primary Founding-era material making use of the broad definition of emoluments, so it is wrong to use language from fact-bound case law to assert that the term is an inherently limited one.

Seth Barrett Tillman responds at the New Reform Club:

... It is conceivable that the Hoyt Court added “of office” language to “emolument” because it believed that there were “emoluments” which were unrelated to office, but it is also possible that the Hoyt Court thought all “emoluments” were tied to office-and-employment-type relationships. Without [Chong's] initial misreading of Hoyt or any other substantial reason to believe the former, the rest of her analysis makes no sense.

It is not as if the meaning of “emoluments” has not come up before. Chong only turns to OLC memoranda as guidance because she lacks anything akin to a judicial decision from the U.S., any state or territory, and any foreign court in the common law world—any decision asserting that you can have an emolument unrelated to discharging the duties of office (or an employment-type relationship). That is telling. And it is not as if commentators have not spoken to this question: the meaning of “emoluments.” They have done that long before Trump. In 1850, the Hoyt Court tied “emoluments” to employment-type relationships, and it did that when interpreting a 1799 statute (as subsequently amended). A 1799 statute’s use of “emoluments” is not obviously so different from how the same word was used in the Constitution in 1789. More recently, Professor Kerridge explained: “[W]hile it is perfectly possible to argue that a payment is a profit but that it is not a profit from an employment, it makes no sense to argue that something is an emolument but that it is not from an employment. All emoluments must be from employments,” and “All emoluments are from employments, or from the equivalent of employments, that is the essenceof emoluments.”

And Brianne Gorod at Take Care Blog, responding to a separate argument by Professor Tillman: What Alexander Hamilton Really Said. 

... [A] small group of commentators has nonetheless maintained that [the emoluments clause] does not apply, or at least may not apply [to the President].  The leader of this group of naysayers is Seth Barrett Tillman, who has argued forcefully—and repeatedly—that the Foreign Emoluments Clause’s broad language does not encompass the President of the United States.  Although Tillman makes more than one argument in this fight, he has often leaned heavily on one particular piece of evidence: a list of “persons holding office under the United States and their salaries” put together by Treasury Secretary Alexander Hamilton that, he says, “did not include any elected officials in any branch.”  According to Tillman, this document demonstrates that “officers under the United States are appointed; by contrast, the president is elected, so he is not an officer under the United States.  Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.”

Tillman pointed to this document here and here and here, and others have understandably relied on his accounting of the Hamilton document.  Most recently, Tillman pointed to it in an amicus brief in support of the government’s motion to dismiss the lawsuit filed by CREW and others in the Southern District of New York.

But there’s a big problem: the document Tillman cites is not the only record of Hamilton’s communication to the United States.  The document Tillman cites states, “The Secretary of the Treasury, in obedience to the order of the Senate of the 7th of May last, respectfully transmits herewith sundry statements of the Salaries fees and Emoluments for one Year ending the first of October 1792, of the Persons holding civil offices or employments under the united States (except the Judges) as far as Returns have been rendered . . . .”  The editors of Alexander Hamilton’s papers added a footnote explaining that there was, as Hamilton’s letter indicated, an enclosure—the actual list of officeholders and their respective compensation.  And as the footnote further explained, while “[t]his enclosure, consisting of ninety manuscript pages, has not been printed,” an “abbreviated version of it” is available in the American State Papers.

When one looks at the “abbreviated version” of the enclosure (available here at image 57), one name is right at the top: George Washington, President of the United States.  John Adams, as Vice President, appears right below his.

It seems that people care what origianlism says about the emoluments clause, Professor Ledewitz notwithstanding.