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03/30/2018

Seth Barrett Tillman on the High Court of Australia and the Emoluments Litigation
Michael Ramsey

Josh Blackman, on behalf of Seth Barrett Tillman, has filed this supplemental brief in the emoluments clause litigation, noting an interesting decision of the High Court of Australia.  It states:

Scholar Seth Barrett Tillman and the Judicial Education Project, Amici Curiae (“Amici”) in Support of Defendant, submit this letter to inform the Court of new relevant authority from the High Court of Australia: Re Lambie [Mar. 14, 2018] HCA 6, 2018 WL 1282055.

Under Section 44 of the Australian Constitution, a person who “holds any office of profit under the Crown” is “incapable” of “sitting as a senator or a member of the House of Representatives.” The High Court concluded that because an elected mayor was not appointed (and not removable) by the Crown, his position was not “under” the Crown. See Lambie [33]–[34], [36]. In a concurring opinion, Justice Edelman explained that this understanding of “office . . . under the crown,” with respect to such elected positions, had by 1901 been “crystallised after two centuries of legal usage.” Lambie concurrence [58] (emphasis added); see also id. (“As Sir Samuel Griffith QC said in submissions in 1889, [office . . . under the crown] was ‘an old phrase, well understood in relation to parliamentary law.’” (quoting Hodel v Cruckshank, 3 Queensland L.J. 140, 141 (Qld. 1889)));
 Amici Brief, ECF No. 76, at 29–30 (“Sir S.W. Griffith . . . would become Australia’s first Chief Justice.” (quoting Griffith’s statement from Hodelsupra)).

The Lambie concurring opinion provides this Court with persuasive authority concerning the understanding of the phrase “office . . . under the United States” when our Constitution’s Foreign Emoluments Clause was ratified. See Messitte, Citing Foreign Law in U.S. Courts, 35 U. Balt. L. Rev. 171, 181 (2005).

(Thanks to Seth Barrett Tillman for the pointer).