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07/26/2018

District Court Finds Hotel Stays Are Emoluments, Principally Based on Originalist Analysis
Michael Ramsey

Yesterday the District Court in the Maryland emoluments litigation (District of Columbia and Maryland v. Trump) denied the President's motion to dismiss, ruling that state and foreign government officials paying for stays at the Trump Hotel are "emoluments" barred by the Constitution.  The analysis is mostly originalist on the key point -- the eighteenth-century definition of emolument -- relying heavily on John Mikhail's article The Definition of “Emolument” in English Language and Legal Dictionaries, 1523–1806, 1–2 (June 30, 2017), https://ssrn.com/abstract=2995693).  Here is the core of the argument:

The clear weight of the evidence shows that an “emolument” was commonly understood by the founding generation to encompass any “profit,” “gain,” or “advantage.” Though the Court agrees that mere counting of dictionaries may not be dispositive, it nonetheless remains highly remarkable that “every English dictionary definition of ‘emolument’ from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief.” Mikhail, The Definition of “Emolument,” supra, at 1-2.25 Moreover, “92% of these dictionaries define ‘emolument’ exclusively in these terms, with no reference to ‘office’ or ‘employment.’” Id. No less important is the fact that even the few sources that do reference an office or employment as part of their definition of “emolument,” include as well the definitions of “gain, or advantage,” a point the President fails to address in his pleadings. Id. at 8 n.26 (noting that Barclay’s full definition of “emolument” is “profit arising from profit or employ; gain or advantage.” (emphasis added)). Further, the President relies heavily on two pre-Constitutional Convention sources, Barclay (1774) and Trusler (1776), despite the fact that, as Professor Mikhail points out, there is “little to no evidence” that either of these two dictionaries “were owned, possessed, or used by the founders.” Mikhail, The Definition of “Emolument,” supra, at 13 (noting that “neither of these dictionaries is mentioned in the more than 178,000 searchable ocuments in the Founders Online database, which makes publicly available the papers of the six most prominent founders.”). On the other hand, in the four dictionaries which have been deemed by Justice Antonin Scalia and Bryan A. Garner as “‘the most useful and authoritative’ English dictionaries from 1750-1800,” “emolument,” consistent with Plaintiffs’ view, is  variously defined as “profit,” “gain,” or “advantage.” Id. at 18 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 419 (2012)).

In addition to its broad meaning in a far greater number of founding-era dictionaries, the term “emolument” was also used in a broad sense in eighteenth century legal and economic treatises. As Professor Mikhail points out, in his Commentaries on the Laws of England, Blackstone uses the word “emolument” on at least sixteen occasions, the majority of those not tied to the performance of official duties or public office. See Mikhail, “Emolument” in Blackstone’s Commentaries, supra, (listing examples). Blackstone, for example, refers to the benefits of third-party beneficiaries as “the emolument of third persons,” discusses the “emoluments arising from inheritance,” and references “pecuniary emoluments” in the context of bankruptcy. 2 William Blackstone, Commentaries on the Laws of England *30 (“The thing given in lieu of tithes must be beneficial to the parson, and not for the emolument of third persons only”) (emphasis added); (“The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy.”) (emphasis added); *472 (“[W]hereas the law of bankrupts, taking into  consideration the sudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon condition they surrender up their whole estate to be divided among their creditors[.]”) (emphasis added).

Similarly, Adam Smith in his The Wealth of Nations—a treatise which the Framers were unquestionably well aware of—used the term “emolument” twice to refer to instances involving private market transactions. See 1 Adam Smith, Inquiry into the Nature and Causes of the Wealth of Nations 92 (9th ed. 1799) (“The monopolists, by keeping the market constantly under-stocked . . . sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.”) (emphasis added); 2 Smith, id., at 234 (“[The bank] makes a profit likewise by selling bank money at five per cent agio, and buying it in at four. These different emoluments amount to a good deal more than what is necessary for paying the salaries of officers, and defraying the expense of management.”) (emphasis added).

The court also rejected Professor Seth Barrett Tillman's argument (as amicus curiae) that the President is not covered by the emoluments clause, relying on (among other authorities) Professor Saikrishna Prakash's article Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y 143, 148-51 (2009).

In all, I count about 29 pages of originalist analysis.  The principal nonoriginalist evidence the court examines are executive branch opinions and practice, which the court regards as secondary at best.

(Via David Post at Volokh Conspiracy, who finds the opinion "awfully persuasive").