« Jennings v. Rodriguez Cuts Back on the Constitutional Doubt Canon
Michael Ramsey
| Main | Jonathan Siegel: The Constitutional Case for Chevron Deference
Michael Ramsey »


More from Seth Barrett Tillman on Emoluments
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has three new SSRN posts on the emoluments issue.

(1) Presidential Electors and the Brief of the Legal Historians in CREW v. Trump:

The first filed of the three Foreign Emoluments Clause cases was CREW v. Trump. Five academics (the “Legal Historians”) filed an amicus brief (the “Legal Historians Brief”) in support of the plaintiffs. The Legal Historians Brief stated: “As holders of an office ‘of trust’ under the United States, [presidential] electors [like the President] would also be subject to the [Foreign Emoluments] [C]lause.” 

The Legal Historians claim regarding presidential electors is perplexing. They cite no authority for this position. More troubling is that there is a substantial body of authority taking the position that presidential electors are state positions, not federal positions, and so entirely beyond the scope of the Foreign Emoluments Clause and its Office... under the United States-language. The Legal Historians did not discuss this line of authority. 

There is a more recent line of academic authority, initially put forward by Vasan Kesavan, that notes that the Constitution’s Religious Test Clause distinguishes offices under the United States from public trusts under the United States. Kesavan argues that the position of presidential elector, although a federal position, is a public trust under the United States, as opposed to an office under the United States. Again, this alternative view was not discussed by the Legal Historians. 

Failing to discuss academic authority and nonbinding federal case law is not best practice. But it is certainly within the norms of the legal profession, particularly in a brief where space is scarce. Failing to discuss contrary Supreme Court authority is another matter entirely. In 1867, in United States v. Hartwell, the Supreme Court held: “The term [‘office’] embraces the ideas of tenure, duration, emolument, and duties.” Presidential electors fail — each and every element — of this four-factor test.

(2) The Foreign Emoluments Clause, the Teachings of the American Civil War, and a Response to Mike Stern: The Aftermath of the Hamilton Documents Imbroglio:

Four score and six years after the founding of the nation, during the Civil War, Congress passed a statute. The statute mandated that certain officeholders take a loyalty oath — this was a second oath, in addition to the ordinary oath prescribed by Congress pursuant to Article VI. The statute extended to “every person” holding “any office of honor or profit under the government of the United States.” The oath was passed during the Thirty-Seventh Congress. That Congress terminated on March 3, 1863. During that Congress, Senator James Asheton Bayard, Jr. (Delaware-Democrat) failed (or, perhaps, refused) to take the newly prescribed loyalty oath. Bayard was reelected in 1863. 

When the first regular session of the new Congress met, Senator Sumner (Massachusetts-Republican) put forward a resolution requiring all senators to take the newly prescribed loyalty oath. Bayard refused to do so on a point of principle. Bayard contested the constitutionality of the statute (at least, as applied to members of Congress) and also its construction: i.e., Did the statute’s language reach members of Congress? Bayard made a variety of arguments. Bayard opened a copy of American State Papers, which was by then some three decades old, and on January 19, 1864, on the floor of the Senate, he proceeded to state...

(3) The Foreign Emoluments Clause—Where the Bodies are Buried: 'Idiosyncratic' Legal Positions (59 South Texas Law Review __ (forthcoming 2018):

In 2017, three sets of plaintiffs in three different federal district courts brought civil actions against the President of the United States: each action alleged that the President has and continues to violate the Constitution’s Foreign Emoluments Clause. The Foreign Emoluments Clause provides: 

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

There are only a handful of federal cases discussing the Foreign Emoluments Clause. Not one of these cases has any extensive discussion of the scope of the Foreign Emoluments Clause or the scope of the clause’s Office of Profit or Trust under the United States language (“Office-language” or “Office . . . under the United States-language”). Not one of these cases, expressly or impliedly, affirms or denies that the clause applies to the President. Likewise, there is no decision by any court of record (of which I am aware) which affirms or denies that the clause’s Office-language, or closely similar language in any other constitutional provision, encompasses the presidency. If the courts were to reach the merits, the issue at hand—i.e., the scope of the clause’s Office-language—is entirely one of first impression. Still, there has been some discussion of the clause and its Office-language, primarily, but not exclusively, amongst academics. Such discussion has appeared in the Department of Justice’s Office of Legal Counsel memoranda, academic articles, popular magazines focusing on news, politics, and law, and in amicus briefs. 

Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views—many of which contradict one another—many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly in their broad methodological approach.