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09/22/2017

Asher Steinberg on the President and Foreign Emoluments
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: The Textual Argument That the President Does Not Hold an "Office Under the United States".  A thorough, detailed and yet readable summary of the argument that underlies the Tillman/Blackman position in the foreign emoluments litigation.  From the introduction:

I was very skeptical indeed of Tillman's position [that the President does not hold an "Office under the United States"] at first, the necessary consequences of which include: (a) that Presidents and members of Congress are not covered by the Foreign Emoluments Clause, (b) that the Incompatibility Clause, which prohibits officers under the United States from serving in Congress, does not prevent the Speaker of the House or Senate Majority Leader from simultaneously serving as President, (c) that the President can be a member of the Electoral College notwithstanding the Elector Incompatibility Clause, which prohibits officers under the United States from serving in the Electoral College, and (d) that Congress can not prevent an impeached official from running for the Presidency, notwithstanding the Disqualification Clause, which allows Congress to disqualify impeached officials from serving in any office under the United States.  These seem like fairly odd rules, and I happen to be someone who believes that oddity is a cognizable constitutional-interpretive consideration, both by way of gauging what the Constitution was likely intended to mean by its drafters or understood to mean by its ratifiers, and as a perfectly legitimate freestanding consideration of its own.

However, as I reviewed the drafts of Tillman and Blackman's brief and read the various responses to Tillman's articles that have been written over the years by some of the academy's leading originalists, most of which were sharply critical, I began to become convinced not only that there is a very serious textual argument for Tillman's position, but that it was difficult to see what an adequate textual rejoinder would look like.  None, I believe, has yet been offered.  

I do not think this textual argument is entirely made or entirely clear in Tillman's brief or perhaps even in his articles, which dwell as much on historic practice and pre-framing usage of related phraseology as on text and pulls several textual punches.  Unlike the brief's authors, or many originalists, I am not someone who attaches profound importance to who Hamilton listed as an officer under the United States in 1793, or whether then-President Jefferson accepted a bust of the Czar of Russia without asking for permission from Congress.  These instances of practice seem to me, at best, indicia of what a couple high-ranking officials made of the Constitution near its ratification, no more or less weighty than the EPA Administrator and her deputy's near-contemporaneous understanding of the Clean Air Act—information in which the connoisseurs of Tillman and Blackman's sort of argument tend to have little to no interest.  I am, however, interested in constitutional text, especially a part of the Constitution's text as little-interpreted as this one, and I think any reader will agree that under normal, humdrum rules of textual interpretation, Tillman's initially counterintuitive claim that the President does not hold an office under the United States is at least a highly permissible reading of the text if not indeed the best.

Extensive and persuasive discussion follows.

And in conclusion:

My intention here has not been to provide anything like a conclusive argument that Presidents are (at least as a textual matter) not officers under the United States.  My intention, rather, has only been to show that there is a strong argument that they are not that needs to be taken far more seriously than it has been, not just because Hamilton prepared a report that supports the view or because Tillman's critics have made spurious claims about the historical record or Tillman himself, but because the text of the Constitution tends to support it.  

I sincerely believe that much work remains to be done in this regard, precisely because so much of the literature and briefing taking the position that Presidents are officers under the United States has been so peremptory.   The weakness of that side of the literature, in my view, is not necessarily a sign of a weak position so much as it is a function of the position's strong intuitive appeal, both in a casual plain-language sense and as a matter of policy, such that the position has seemed too obvious until now to need much defense from a lone scholar.  My hope in writing this post has been to at least help dissolve the sense that the Presidency's status as an office under the United States is beyond debate, so that scholars, researchers and lawyers inclined to support that proposition can begin the textual and historical work of explaining why it is correct, and so that scholars, researchers and lawyers who come to this question in a spirit of genuine inquiry can continue the work that Professor Tillman has so ably started.

(Via How Appealing).

RELATED:  Josh Blackman has additional thoughts here: The Early Days of the Obamacare and Emoluments Clause Litigation.  On the amicus effort in the emoluments litigation he says:

While most scholars never even considered the Foreign Emoluments Clause, and who holds “Office . . . under the United States” before November 2016, Seth Barrett Tillman has been studying these areas for nearly a decade. Long before Donald Trump was President, he wrote consistently that the language used in the Foreign Emoluments Clause does not apply to elected positions, like the President or members of Congress. He wrote that President Barrack Obama could keep his Senate seat, and a Vice President Ryan could keep his House seat. The most cursory inspection of Seth’s record demonstrates that this is not an ideological or partisan project. He has been a consistent scholar on this point for years. Further, Seth persuaded me on that question some time ago, long before President Trump was even a figment of my imagination. That is why I have devoted considerable time and effort in this litigation. Working closely with Seth has been one of the most rewarding experiences of my career.

This brief has nothing to do with Donald Trump or his business interests. Rather, as a friend of the court, we seek to provide a stream of authority about the text and history of the Constitution that neither of the parties have advanced.