Previewing the next Supreme Court term

The Supreme Court’s term begins Monday, so it’s the time of year for Supreme Court previews.

I’ve penned a brief roundup for National Review.  The title, “A Supreme Court Term for the Ages,” may give you an idea of what I think we’re in for (and that is true whether, as some expect, Justice Anthony M. Kennedy announces his retirement in the spring or not).

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The Jones Act and the perils of political ignorance

The previously little-known Jones Act has been in the news recently because its restrictions on the use of foreign ships to carry cargo between American ports is making Puerto Rico’s recovery from Hurricane Maria even more difficult than it might be otherwise. Enacted in 1920, the law mandates that any goods shipped between two American ports must be carried by American ships. As a result, Americans pay greatly inflated prices for a wide range of shipped goods. The Act is particularly burdensome for island jurisdictions, such as Puerto Rico and Hawaii, which must bring in a very high proportion of the goods they need by sea. The costs the Jones Act inflicts on consumers and the US economy as a whole vastly outweigh the benefits it creates for US shipping interests. Obviously, the pain the Act inflicts is even greater at a time when Puerto Rico desperately needs a wide range of supplies for reconstruction and recovery.

In response to pleas from across the political spectrum, President Trump reversed his earlier position and agreed to waive the Jones Act for Puerto Rico, as he had earlier for areas of Texas and Florida hit by recent hurricanes. But the Puerto Rico waiver applies for only ten days, which is nowhere near enough, since the recovery process is likely to take many months.

All of this raises the question of why the Jones Act has persisted for over a century, and why – even now – Congress has not acted to repeal it. The standard explanation offered by economists and political scientists focuses on the disproportionate power of small, well-organized interest groups – in this case, the American shippers who benefit from the suppression of foreign competition.

Interest group lobbying surely is an important part of the story. But it does not fully explain how such a small group can prevail over the vast majority of Americans who are harmed by the Act. If they wanted to, voters could easily force Congress to  abolish the Jones Act simply by committing to vote out incumbents who refuse to support repeal. They need not even vote for candidates of the opposing party to do so. They could instead support primary challengers who oppose the Jones Act, but otherwise vote the same way as the incumbent. If opposing the Jones Act were seen as a promising path to electoral success, plenty of ambitious politicians would be happy to take it?

Why doesn’t this happen? Most likely because the vast majority of voters have never even heard of the Jones Act, much less understand the costs it imposes on the economy. The small, well-organized shipping interests that benefit from it do know, however, and lobby accordingly. Politicians who oppose the Jones Act are unlikely to attract much support from the general public (who probably will not even notice their stance), but would antagonize the shippers. Thus, only a few are willing to take the risk, such as Arizona Senator John McCain, a longtime advocate of repeal.

We do not know for sure whether the general public is ignorant of the Jones Act. To my knowledge, there is almost no survey data on the question, in part because pollsters rarely ask about such comparatively obscure legislation. They generally assume that voters are so unlikely to know about it, that it is not worth asking. But widespread ignorance about the Jones Act is a safe assumption, given that most of the public is ignorant of basic facts about far more prominent policies (such as the Affordable Care Act), and even the structure of government. If the majority of the public cannot even name the three branches of the federal government and does not realize that Medicare and Social Security are among the largest federal programs, it is highly likely very few know anything about the Jones Act.

A recent survey found that almost half of Americans do not even realize that Puerto Ricans are American citizens. This level of ignorance about Puerto Rico suggests that it is also unlikely that very many knew how much the island suffers from US-imposed shipping restrictions.

The Jones Act is just one of many examples of how what the voters don’t know about politics can hurt them. Because of public ignorance, organized interest groups have been able to use the Jones Act to fleece the public without the latter catching on.

It is possible that the wave of publicity generated by the Puerto Rico crisis will finally change that. The political pressure that led Trump to waive the Jones Act for ten days might grow to the point where Congress and the president push through much broader reforms. But I would not hold my breath. The Puerto Rico story competes for attention with many others, and it is very possible that the public will soon refocus on something else, and even that many still will not notice the Jones Act issue in the first place.

The enormous size, scope, and complexity of modern government magnifies opportunities for interest groups to push through harmful policies without the general public noticing what is going.  Most voters do not have the time and attention span to keep track of more than a few government policies, if even that many.

Public ignorance about the Jones Act and other such issues is not an indication that voters are stupid. To the contrary, widespread political ignorance is mostly the result of perfectly rational behavior. Learning about the Jones Act requires time and effort that could instead be devoted to other things. If a voter does study it, the chance that his or her better-informed vote will change the outcome of an election is infinitesimally small. Thus, it makes little sense to devote much effort to studying up on such issues unless you find it interesting, or have some other reason to do so, besides becoming a better voter.

Unfortunately, this is an area where individually rational behavior leads to bad collective outcomes. It does not matter if any one voter is ignorant. But if the majority of the entire electorate is, that facilitates abuses like the Jones Act. The plight of Puerto Rico is yet another example of this much broader problem that plagues modern democracy.

Political ignorance is very difficult to overcome. There are a number of possible strategies for reducing the danger, but none are easy to implement. Still, we  should at least recognize the magnitude of the problem, and start taking it seriously.

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The emoluments clauses litigation, part 4 — an emolument is the “profit derived from a discharge of the duties of the office”

(Matt McClain/ The Washington Post)

Our first, second and third posts, based on briefs we submitted to the District Courts for the Southern District of New York and the District of Columbia, explained that because the president does not hold an “Office … under the United States,” he or she is not subject to the foreign emoluments clause. This drafting convention refers to appointed officers, not elected federal officials. The president, however, is subject to the presidential emoluments clause, also known as the compensation clause or the domestic emoluments clause. Art. II, § 1, cl. 7 provides “The President … shall not receive within that Period any other Emolument from the United States, or any of them.” The presidential emoluments clause expressly bars the president from receiving an “emolument” from the United States or any state in the Union. Indeed there is a certain symmetry in  that the Constitution has three separate emoluments clauses: one for Congress (sinecure or ineligibility clause — Art. I, § 6, cl. 2), one for the president (presidential emoluments clause — Art. II, § 1, cl. 7), and one for appointed officers (foreign emoluments clause — Art. I, § 9, cl. 8).

The plaintiffs in the current litigation assert that President Trump has violated and continues to violate the presidential emoluments clause by receiving profits derived from business transactions with state governments. They have defined an “emolument” to consist of “anything of value,” whether “monetary or non-monetary.” This post will analyze the meaning of the word “emolument” in the presidential emoluments clause, as well as in the foreign emoluments.

“Emoluments” Refer to “Compensation” Derived from the “Discharge of the Duties of the Office.”

Although the term “emoluments” is now somewhat archaic, it has long had a settled meaning. As the Supreme Court explained in Hoyt v. United States (1850), the term “emoluments” “embrac[es] every species of compensation or pecuniary profit derived from a discharge of the duties of the office.” To put it in its simplest terms, an “emolument” is the lawfully authorized compensation that flows from holding an office or employment. See State ex rel. Anaya v. McBride, 539 P.2d 1006, 1012 (N.M. 1975); State ex rel. Benson v. Schmahl, 145 N.W. 794, 795 (Minn. 1914); State ex rel. Todd v. Reeves, 82 P.2d 173, 176 (Wash. 1938) (Blake, J., dissenting) (citing Hoyt, 51 U.S. (10 How.) 109 (1850)).

The presidential emoluments clause does not bar presidents from holding a second federal office, or even a state office. However, they cannot accept any compensation, that is, emoluments, from that second office. They can only receive the emoluments associated with the presidency. In other words, a president can hold a second government (domestic) position (there is no incompatibility), but he or she cannot take the compensation associated with that second position.

To put it another way, “emoluments” should be understood as the compensation which is to be fixed by law by the body that creates the office or position under discussion, or by the body charged with fixing the office’s or position’s regular compensation. Pursuant to Article II, Section I, clause 7, the emoluments for the presidency are established by Congress. Congress, and only Congress, has the power to determine the emoluments of each and every federal position and office, including the presidency. Voluntary actions by third parties, or even by the president, cannot change a position’s emoluments. With or without the cooperation of the president, a state government, or a foreign power for that matter, cannot change the “emoluments” of the presidency: only Congress can do that.

Further, accepting plaintiffs’ contrary position leads to bizarre structural consequences. The ineligibility clause provides: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time.” Under this provision, the president is barred from appointing a senator to a Cabinet position, if that Cabinet post’s “emoluments” were increased during his or  her Senate term.

Imagine if a state legislature purports to raise the “emoluments” of a Cabinet position by $100 per year by state statute. Have the emoluments been increased? Under the ineligibility clause if its “emoluments” have been increased, a senator cannot take the position, even if the person refrains from accepting the increase. If plaintiffs are correct, and third-parties (like states) can change a federal position’s emoluments, then the emoluments have been increased, and the president cannot make the appointment. Plaintiffs’ position would give every single state (and every foreign government) a veto power over presidential appointments. Plaintiffs’ ahistorical position makes no structural sense. Such bizarre consequences go far to establish that the president’s emoluments are compensation as determined by Congress, and only by Congress. A president’s business transactions with third parties (the federal government, a state government, or a foreign government), cannot be constitutionally proscribed emoluments.

If there were any doubt that the Hoyt Court’s narrow definition of “emoluments” applies to the presidential emoluments clause, one need only consider that President Washington’s conduct set the standard.

Benefits from President Washington’s “Public Sale of Lots” were not “Emoluments”

On Sept. 18, 1793, President George Washington crossed the Potomac. He was greeted with two brass bands, which escorted him on the first parade that was held in the federal capital district. He traveled from the future site of the White House to the future site of the Capitol. The Columbian Gazetteer, a New York newspaper, reported that upon his arrival, the master of ceremonies “deposited” the Capitol’s cornerstone, adding that “the presence of Washington, gave magnificence to the scene, and brilliancy to the performance.” Similar accounts were published in newspapers in Boston and South Carolina.

That very same day, historian James Thomas Flexner recounts, “there was to be an auction of lots,” which had been actively advertised in newspapers as far away as Philadelphia six months earlier. The auction would be supervised by three commissioners that Washington had appointed in 1791: David Stuart, Daniel Carroll, and Thomas Johnson. These prominent figures played important roles in the early years of our Republic. Stuart was a member of the Virginia convention that ratified the Federal Constitution. Daniel Carroll was a member of the Federal Convention that drafted the Constitution and served in the First Congress. Thomas Johnson was the first governor of Maryland following independence, a member of the Maryland convention that ratified the federal Constitution, and served as an associate justice of the Supreme Court during his tenure as a commissioner.

As the lots in the new federal capital were put up for sale by the auctioneer’s chants, Flexner wrote, “there were few raised hands, few shouting voices.” One account, according to historian Bob Arnebeck, recalled that some eighteen buyers were present at the public auction. Washington, who had “hoped [this auction] would be more successful than its predecessors … leaned forward in suspense,” Flexner recounted. And then, he “br[oke] the silence to buy four lots on the East Branch.” The certificates for the purchase of lots 5, 12, 13, and 14, preserved in Washington’s papers, were recorded as the “Public Sale of Lots.”

George Washington received valuable plots of land (i.e., purported “emoluments”) from the federal government. To the plaintiffs and their Amici, our first president, under the watchful eye of three prominent members of our founding generation and in full public view in the new federal capital, willfully violated the Constitution. Washington, a trained surveyor of land, would have known that his purchases would be publicly recorded for all to see. This is not the model of a diabolical schemer, attempting to evade his constitutional duties through subterfuge. There was none: it was all done in public. Washington was acutely aware of how his every action would be scrutinized. In a letter to his nephew, and future Supreme Court Justice, Bushrod Washington, the president explained that “my political conduct … must be exceedingly circumspect and proof against just criticism, for the Eyes of Argus [the all-seeing, many-eyed giant of Greek mythology] are upon me, and no slip will pass unnoticed that can be improved into a supposed partiality for friends or relations.”

It is only now, more than two centuries after Philadelphia, that certain legal historians are making the ahistorical claim that President Washington’s business dealings with the federal government is and was prohibited by the presidential emoluments clause. Are we really to believe that not only did the commissioners willingly, openly, and notoriously participate in a conspiracy to aid and abet the president in violating the Constitution’s presidential emoluments clause, but that they also left — for themselves and their posterity — a complete and signed documentary trail of their wrongdoing?

Finally, we know of no contemporary opposition to Washington’s participation in the land auction, even though he appointed and had supervisory power over the commissioners who presided over the auction. Even at that time, anti-administration officials could have seized upon any maladministration or unethical conduct. In 1793, there were some 13 anti-administration Senators and some 40 anti-administration Representatives.

That no opposition was registered strengthens the inference that Washington’s bids were not perceived by the public as anything other than perfectly legal and perfectly fair. Indeed, just as Washington’s contemporaries failed to object to his doing business with the federal government, later commentators who had access to these historical records also failed to discuss any such potential objections based on the presidential emoluments clause in regard to Washington’s Sept. 18, 1793 land purchases. The one historian (i.e., the one historian not connected to current litigation) to address the scope of the term “emoluments” and its applicability to business transactions has squarely rejected this argument. Attempts to paint Washington as a grossly negligent, if not a crooked dealer, are contrary to the overwhelming weight of evidence. Likewise, efforts to tar the reputation of the commissioners, who were respected officials in the Early Republic, are unsupported by any evidence. The far simpler answer is that business transactions are beyond the scope of the phrase “emoluments” in both the presidential and foreign emoluments clause. Plaintiffs’ attempt to redefine these provisions should fail as a matter of law.

A Corpus Linguistics Analysis of “Emoluments”

The Supreme Court’s decision in Hoyt and President Washington’s practices go far to demonstrate that the word “emoluments” in the presidential emoluments clause cannot mean “anything of value,” whether “monetary or non-monetary.” This position is bolstered by a new analysis performed by James C. Phillips and Sara White, titled The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799. Phillips and White presented their paper at the recent South Texas Law Review symposium on the foreign emoluments clause, and their paper will be published later next year.

Here is an excerpt of the abstract of this cutting-edge analysis, which Professor Larry Solum said was “Highly recommended. Download it while its hot!”:

…This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship….

We constructed three corpora for our analysis that covered 1760-1799: one of books, pamphlets and broadsides from a mix of ordinary and elite authors (53.4 million words), one correspondence of six major “Founders” (43.9 million words), and one of legal materials (48.6 million words). From each we sampled about 250 instances of the use of the term emolument (and read over 150,000 words of context–the equivalent of a Harry Potter novel). We found that the broad, general sense of emolument was the most common compared to the narrow, office/public employment sense in the “ordinary” corpus (54.6% to 34.1%, 11.2% ambiguous), but that the general sense was less common than the narrow sense in the “elite” corpus (29.3% to 64.8%, 5.9% ambiguous) and the “legal” corpus (25.6% and 68.7%, 5.7% ambiguous). When just looking at instances in our sample where the recipient is an office, we found the narrow sense dominated: “ordinary” corpus (84.2%), “elite” corpus (88.0%), “legal” corpus (94.2%). And the narrow sense was even more common when looking in the context of emoluments from government: “ordinary” corpus (86.7%), “elite” corpus (92.6%), and “legal” corpus (97.3%).

This paper concludes that the congressional and presidential emoluments clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the foreign emoluments clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.

Here is a video of Phillips and White presenting their paper:

The Justice Department has cited Phillips and White’s position at some length.

The Word “Emolument” in the Presidential Emoluments Clause Is Narrower than its Usage in the Foreign Emoluments Clause

It is worth stressing that the word “emoluments” in the presidential emoluments clause is arguably even narrower than its usage in the foreign emoluments clause. The latter refers to “any present, Emolument, Office, or Title, of any kind whatever.” Though this issue has never been addressed by any court, we submit that the clause’s “any kind whatever” language does not turn a non-emolument (e.g., a business transaction) into an emolument. Rather, this provision is best read to extend the force of the foreign emolument clause’s emoluments-language to ambiguous cases. To illustrate this principle, courts have long divided on whether pensions and other perquisites accruing to former officeholders are “emoluments,” and on whether reimbursing an officeholder’s expenses are “emoluments.” See 5 A.L.R.2d 1182, § 1-4. The “of any kind whatever” language in the foreign emoluments clause resolves this lingering question.


Our final post will address certain jurisdictional and pleading issues in the emoluments clause litigation.

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D.C. Circuit won’t rehear Second Amendment right-to-carry-guns-in-public case; likely next stop: Supreme Court

In July, a D.C. Circuit panel held, by a 2-1 vote, that the Second Amendment secures a right to carry guns in public. This leaves considerable room for “shall-issue” licensing requirements (under which pretty much any law-abiding adult can get a license but might have to undergo various checks, training and the like) and other regulations; but the old D.C. rule, under which the government could deny you a carry license just because it thought you didn’t have a good enough reason, was struck down.

D.C. asked for rehearing en banc, by the whole D.C. Circuit; but today, the court denied rehearing, apparently without any judge requesting a vote. D.C. can now petition the Supreme Court for review, and I think the court will almost certainly agree to hear the case: There would be a request for review from the D.C. government (the court takes such requests for review from governments fairly seriously). And there is a split of authority on the subject between the 2nd, 3rd, 4th and 9th Circuits on the general no-right-to-carry side (though with some differences in the analysis among the courts) and the 7th Circuit, D.C. Circuit and Illinois Supreme Court on the right-to-carry side. Should be very interesting to see.

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Two excellent, intellectual nominations to the 5th Circuit (Jim Ho and Justice Don Willett)

There’s much that I think the Trump administration has done wrong, but its judicial nominations continue to impress me. I’ve known Jim Ho for 20 years, and he’s extremely smart and thoughtful — a former Supreme Court clerk, a Texas solicitor general and co-chair of leading law firm Gibson Dunn’s Appellate and Constitutional Law practice group. A superb choice.

I don’t know Texas Supreme Court Justice Don Willett well personally, but I’ve thought his judicial opinions have been very interesting and thoughtful; and the times I’ve met him, I’ve likewise been much impressed. One indicator of his intellectual qualities: While a sitting judge, he enrolled and got an LLM degree in the Master of Judicial Studies program at Duke Law School. No- one makes judges do that; they do that only if they really want to further hone their abilities and think about the law academically as well as pragmatically. Another superb choice.

Going back a few months, Orin Kerr beat me to endorsing University of Pennsylvania Law School professor Stephanos Bibas, who was nominated to the U.S. Court of Appeals for the 3rd Circuit, and he can speak especially well about Bibas, who works in one of Kerr’s fields (criminal procedure). But I, too, know Bibas well and think very highly of him and his work; he’s one of the top criminal procedure scholars in the country.

Finally, Allison Eid, who was nominated to the 10th Circuit this Summer, is also very smart — she’s also been a Supreme Court clerk, a law professor and a state supreme court justice (in Colorado); I don’t know her as well as I know Ho and Bibas, but I know her enough to be confident that she’d make an excellent Circuit Court judge. And I would say the same about David Stras, a Minnesota Supreme Court justice and also a former Supreme Court clerk and law professor, nominated to the 8th Circuit.

I’ve also heard very good things about some of the other recent nominees, but these are just the ones I can speak about based on personal knowledge.

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The emoluments clauses litigation, Part 3 — so what if the president does not hold ‘Office … under the United States’?

(Matt McClain/ The Washington Post)

The foreign emoluments clause provides that “no Person holding any Office of Profit or Trust under [the United States], 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.” In our first post, we showed that the drafting convention “Office … under the United States” covers appointed officers, and not elected officials within the federal government. As a result, the president is not subject to the foreign emoluments clause. Our second post explained how the practices of presidents during the early republic, the first Congress and Alexander Hamilton, while serving as America’s first treasury secretary, confirm that they understood that the president was not subject to the foreign emoluments clause and its “Office … under the United States” language. Both posts were based on amicus briefs we submitted to the District Courts for the Southern District of New York and the District of Columbia.

This post will offer an FAQ of what happens if the president does not hold “Office … under the United States.” Here we respond to several questions advanced by the plaintiffs and their amici, as well as others raised in the Volokh Conspiracy comment thread. For full length treatments of these queries, see Tillman’s many publications on this subject.

1. Does the incompatibility clause bar the president from concurrently serving in the House or Senate?

The incompatibility clause states that “no person holding any Office under the United States” may serve in either the House or Senate. Professor Steven G. Calabresi and now-Justice Joan L. Larsen explained decades ago that this clause was an ethics provision, not a “general separation-of-powers provision.” As illustrated in Federalist No. 76, the framers saw the English Constitution as corrupt because the king could bribe members of parliament (MPs) with lucrative office. But the king never bribed MPs by making them king. Likewise, the president could bribe members of Congress with lucrative positions, but the president could not make members of Congress president. Simply put, the primary purpose of the incompatibility clause had nothing to do with barring the president from concurrently serving in the House or Senate.

There are many bad consequences the Constitution does not expressly preclude. The (federal) Constitution does not expressly bar a person from concurrently holding two state positions. Nor does it expressly bar a person from concurrently holding an appointed Judicial Branch position and an appointed Executive Branch position (John Marshall served as both chief justice and secretary of state during the Adams administration). Nor does the Constitution expressly bar a person from concurrently holding two House seats, or two Senate seats, or a House and Senate seat. All these results are (arguably) bad. But the fact that a result is bad does not mean it is addressed by the Constitution’s incompatibility clause and its “Office under the United States” language.

Of course, some of the bad joint office holdings described above, just like joint presidential-congressional officeholding, might be barred on structural grounds. For example, Professor Akhil Reed Amar has written that even though, as a textual matter, the vice president should preside at his own impeachment trial, other constitutional principles would bar such a conflicted proceeding. Perhaps, similar structural constraints might bar a president from concurrently serving in the House or the Senate. But even if such an implied structural constitutional bar exists, that limitation against concurrent officeholding is not rooted in the text of the incompatibility clause and its “Office under the United States” language.

2. Under the disqualification clause, can Congress prospectively bar an impeached officer from being elected to Congress or to the presidency?

If the House impeaches a president, vice president or officer of the United States, then that defendant is tried by the Senate. If the Senate tries and convicts (by a two-thirds vote), then the convicted party (if still in office) is removed. The Senate may also impose a second punishment on the convicted party. Under the disqualification clause, Congress may bar the convicted party from prospectively holding “any Office of honor, Trust or Profit under the United States.” This provision grants Congress the power to prevent a convicted party from being appointed to a federal position, but does nothing to prevent a convicted party from being elected to the House, Senate or the presidency.

Congress has disqualified only three impeached officers (all federal judges) from holding future office, and none have subsequently run for elected federal positions. As a result, we have no substantial law here and little commentary. We have already explained that Justice Joseph Story indicated that elected officials did not fall under the scope of the Constitution’s general “officer of the United States”and “Office … under the United States” language. This latter language is at least as wide as the disqualification clause’s “Office of honor, Trust or Profit under the United States” language. Story’s position is also supported by Hamilton’s roll of officers. Of course, we also believe the practice of George Washington and other founders who succeeded him as president confirms that the “Office … under the United States” language in the foreign emoluments clause does not reach the presidency. The same result should apply here. An impeached, tried, convicted, removed and disqualified defendant is barred from being an appointed federal officer, and not barred from being an elected official.

We also think that our position is the one that is normatively sound. The impeachment process is a political process that allows Congress to cleanse the government between elections: when there is no time to wait for an appeal to the people. But the impeachment process is a political process. The people doing the impeaching may not only be wrong, but they also might be the wrongdoers. Our position in regard to the scope of disqualification allows the voters, not Congress, to have the last word. If the voters return a disqualified defendant to elective office it is because where in doubt, it is the voters, not their agents in Congress, who should have the last word.

3. Does the elector incompatibility clause bar the president from serving as an elector?

The elector incompatibility clause provides: “No Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” The president is not expressly mentioned. Our position is that the president and vice president can serve as electors, even if they are standing as candidates. Again, we look to Hamilton for support. In Federalist No. 68, Hamilton stated:

[The framers] have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes … . And they have excluded from eligibility to this trust [as federal elector], all those who from [their] situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias.

Hamilton’s exposition of the elector incompatibility clause was wholly concerned with decisional independence, not pre-commitment bias.

Statutory officers appointed by the president are excluded from serving as electors precisely because the president (or his immediate subordinates) appointed them, because the president is in a position to remove them, and because the president may appoint or promote them to additional or higher offices. By contrast, the president and vice president (and their successors) are not subject to presidential appointment, removal or supervision in the ordinary course of business. As such they are not “officers … under the United States,” and there is no danger in allowing them to serve as electors per Hamilton’s analysis.

To put it another way, if pre-commitment bias arising from self-interest were the rationale for the elector incompatibility clause, then candidates who are not incumbents would be precluded from acting as electors, and electors would be precluded from voting for themselves (and for family members, and perhaps even for fellow party members). But the Constitution does no such thing.

4. Is the president subject to the religious test clause?

The religious test clause provides “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Our position is that “Office … under the United States” extends to all appointed officers, and that “public Trust … under the United States” extends to all elected officials. Thus the religious test clause covers all federal positions, appointed and elected, including the president.

What are the competing views? Those who have taken the position that the Constitution’s “Office under the United States” language extends to all federal positions, appointed and elected, are left arguing that the religious test clause’s “public Trust under the United States” language is pure surplusage. Those who argue that “Office under the United States” extends to appointed officers and the president and vice president have made no effort to explain the scope of the religious test clause’s “public Trust under the United States” language, much less what to make of the contrary evidence arising in connection with presidential practice, the First Congress, Story’s “Commentaries,” and Hamilton’s roll of officers. The virtue of the argument put forward here is that our position accounts for the Constitution’s varying text, drafting history, and post-ratification practice. The competing theories can only appeal to modern good governance norms and modern linguistic intuitions.

5. What about George Mason and Edmund Randolph?

During the Virginia ratifying convention, George Mason and Edmund Randolph took the position that the foreign emoluments clause applies to the president. Randolph opined that the president “may be impeached” for violating the foreign emoluments clause. (If Randolph is correct that impeachment is the proper remedy for the president’s violating the foreign emoluments clause — and he is not — then plaintiffs’ grievances are being litigated in the wrong court.)

Randolph’s and Mason’s positions are problematic because they also thought that members of Congress could be impeached. Specifically, they believed that the Constitution’s general office-language (that is, “Officers of the United States” as used in the impeachment clause) extends to representatives and senators. Randolph and Mason’s positions on the impeachment and foreign emoluments clauses are not independent, separate or distinguishable: Both positions arise from their view that the scope of the Constitution’s general office-language extends to elected officials. Their view in regard to the impeachment clause’s office-language was contemporaneously rejected by James Monroe, ratifier and future president, and ultimately by the Senate sitting as a court of impeachment. There is no principled way to rely on their closely related view in regard to the scope of the foreign emoluments clause’s office-language.

6. What about Presidents Jackson, Van Buren, Tyler and Lincoln?

Plaintiffs and their amici contend that the actions of Presidents Andrew Jackson, Martin Van Buren, John Tyler and Abraham Lincoln suggest that they acted under the assumption that the foreign emoluments clause applies to the president. However, these antebellum presidents never asked for consent to keep foreign gifts. Rather, each simply asked Congress to dispose of those gifts. Jackson said “our Constitution forbids the acceptance of presents from a foreign State,” and “placed [the medal] at the disposal of Congress.” Van Buren wrote “I deem it my duty to lay the proposition before Congress, for such disposition as they may think fit to make of it.” Tyler wrote that foreign gifts “will be disposed of in such manner as Congress may think proper to direct.” The House resolved that gifts received by Lincoln from the King of Siam would be “deposited in the collection of curiosities at the Department of the Interior,” but there was no request for him to keep it. In May 1861, President Lincoln deposited with the State Department a diploma of citizenship he received from San Marino. Because the gift was addressed to President James Buchanan, a century later the Office of Legal Counsel concluded that that Lincoln treated the diploma as a “gift[] to the United States, rather than as personal gift[].” The House and Senate were fully able to consent to these foreign gifts — and indeed consented to other foreign gifts at the time — but the presidents never asked for such consent.

To the extent that these presidents operated under the assumption they were bound by the foreign emoluments clause, such practices would have represented a sharp break with the traditions of President Washington other founders who succeeded him as president during the early republic. There is no indication that any of these antebellum presidents were aware of the earlier precedents established by their predecessors — including actors who took an active hand in framing the Constitution, ratifying it and putting it into practice. This later-in-time evidence, in which presidents never actually asked to keep foreign gifts, is less probative.

7. What about the 2009 Office of Legal Counsel opinion?

In 2009 the Office of Legal Counsel (OLC) affirmed in a memorandum that “the President surely ‘hold[s] an[] Office of Profit or Trust’ … .” (emphasis added). The OLC offered no evidence whatsoever to support this conclusion, and did not reference the “Office … under” drafting convention, the precedents established by Washington other founders who succeeded him as president during the early republic, or the practices of the First Congress, or Hamilton’s roll of officers. The OLC’s mere unexamined assumption is entitled to little weight. The glib word “surely,” by itself, does not prove the argument.

While the OLC has not revisited its unsupported conclusion, the Congressional Research Service (CRS), an institution with a reputation for probity and quality analysis, has changed course. As recently as 2012, the CRS concluded that “The President and all federal officials are restricted by the Constitution, at Article I, Section 9, clause 8 … .” However, more recently, after becoming aware of the research presented in Tillman’s scholarship, the CRS modified its position. Now the service hedges, noting that foreign emoluments clause “might technically apply to the President.” This change is not without significance.

To date, the Justice Department has declined to argue that the president is not covered by the foreign emoluments clause — simply assuming the answer — though the agency has, as is its practice, carefully avoided taking an explicit position on this constitutional question. Having convinced amici that the Condensed Report is not an authentic Hamilton-signed document, we believe we will also convince the OLC in the not too distant future. Much like the taxing-power argument in the Obamacare litigation, which was basically ignored in the lower-court litigation, the “Office … under the United States” argument is a silver-bullet that can save the case on appeal.

8. Isn’t there a difference between foreign-government gifts given to President Washington and foreign-government transactions made with President Trump’s businesses?

The presidential emoluments clause provides “The President … shall not receive within that Period any other Emolument from the United States, or any of them.” This clause concerns only the receipt of an “Emolument” from the United States, or one of the states in the Union. In contrast, the scope of the foreign emoluments clause is far broader. It applies to the “accept[ance] of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Unlike the Seventh Amendment, which guarantees a jury trial where the “value in controversy shall exceed twenty dollars,” the foreign emoluments clause applies to a mere “present,” regardless of its value. If the president were subject to the foreign emoluments clause — and he is not — then there is no obvious constitutional difference between President Washington accepting an ornately framed portrait from the French government and President Trump accepting hotel receipts from the French government. The former is a “present,” and the latter (at least under the plaintiffs’ flawed reading) is an “emolument.” Both would be equally prohibited. However, neither is prohibited because the president is not subject to the foreign emoluments clause. And further, as we will discuss in our fourth post, an “emolument” is limited to “compensation or pecuniary profit derived from a discharge of the duties of the office.”

9. How can you be right if the framers were “obsessed” with corruption?

The previous questions ultimately boil down to a final intuition: These arguments can not possibly be right because the framers drafted the foreign emoluments clause to eliminate corruption. Indeed, as Professor Zephyr Teachout has written throughout her impressive body of scholarship, the framers were “obsessed” with corruption. We do not mean to criticize Teachout, who, unlike so many of the Johnny-come-latelies, actually wrote about the foreign emoluments clause prior to the 2016 election. But we think that this an untethered purposivist argument is not enough to trump the body of textual and historical evidence we have provided. As Will Baude noted in 2016, Tillman’s arguments have “shifted the burden of proof” to those who claim that the president is subject to the foreign emoluments clause. Citing a general purpose behind the Constitution is not enough.


Our next post will turn to the meaning of “emoluments” as used in the presidential emoluments clause and the foreign emoluments clause.

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Four for the 5th Circuit (and other new judicial nominations)

Today the Trump administration is adding more names to the already impressive list of federal judicial nominees pending in the Senate. Most notably, the administration tapped four accomplished attorneys for open seats on the U.S Court of Appeals for the 5th Circuit, in addition to putting additional candidates for other courts.

The highest-profile appointments are likely the two from Texas: Justice Don R. Willett and James Ho. There have been two Lone Star State vacancies on the 5th Circuit since the start of the administration, and substantial speculation about who among several highly qualified potential nominees would get the nod. At last, the wrangling is over, and the picks have been made.

Willett is no stranger to #appellatetwitter, as he has a highly popular Twitter account. He has also attracted notice for his libertarian-leaning legal opinions, most notably one in which he adopted a more stringent form of rational basis scrutiny to strike down state cosmetology licensing regulations as applied to eyebrow threading. He was also on the short list of potential Supreme Court nominees then-candidate Trump released during the campaign.

Willett’s Twitter use may raise some eyebrows, if only because he’s almost certainly the first federal appellate court nominee with such an active and high-profile social media presence, yet there’s hardly anything on his feed that would seem objectionable. Most of his posts consist of witticisms and historical curiosities. He may not have always tweeted favorably about then-candidate Trump during the Republican primary, but insofar as he was critical of Trump back then, his nomination only speaks to the caliber and seriousness of this administration’s judicial selection process, that any such tweets were considered far less important than the nominee’s qualifications.

Ho is a partner at Gibson Dunn in Dallas. A former law clerk to Justice Clarence Thomas, he previously worked for Sen. John Cornyn (R-Tex.) and served as Texas solicitor general. He’s also the author of this nice little piece on birthright citizenship and the original understanding of the 14th Amendment. I also believe Ho would be the first Asian American judge on the 5th Circuit once confirmed. Ho is a naturalized citizen who was born in Taiwan.

The other two 5th Circuit picks are from Louisiana: Judge Kurt Engelhardt and Kyle Duncan, one of which fills an open seat just created by Judge Edith Brown Clement’s decision to take senior status upon the confirmation of her replacement.

Engelhardt is currently the chief judge of the United States District Court for the Eastern District of Louisiana, a court he joined in 2001 as an appointee of President George W. Bush.

Duncan is a principal at Schaerr Duncan LLP, having previously served as solicitor general for Louisiana and general counsel for the Becket Fund for Religious Liberty. As his resume might suggest, Duncan has been heavily involved in high-profile religious liberty cases. Among other things, Duncan was counsel of record in Hobby Lobby v. Burwell. More recently, he represented the Gloucester County school board in G.G. v. Gloucester County.

I suspect progressive activist groups — the same groups that have attacked sterling nominees such as Professors Amy Coney Barrett and Stephanos Bibas — will object that Duncan has worked on the “wrong” side of high-profile disputes involving the intersection of religious liberties and non-discrimination law. To my mind, such high-profile work only speaks to Duncan’s qualifications for the bench and would say the same about equivalent work for progressive causes.

It is inevitable that talented appellate lawyers will represent potentially controversial clients in high-profile cases, and this often means representing clients with which the attorney may or may not agree. Such cases can be particularly challenging and thus particularly rewarding, personally and professionally. That Duncan has worked on such cases should be a plus, not a disqualification, and this should be so whether those clients are perceived as advancing “conservative” or “liberal” causes, the Alliance Defense Fund or the ACLU. What matters is the attorney’s professional conduct in handling such cases and the nominee’s capability of setting aside his or her personal preferences from the bench.

Among the Trump administration’s other nominees today are two law professors, continuing the administration’s notable (and, frankly, pleasantly surprising) pattern of selecting accomplished academics for the federal bench. Today’s academics-turned-nominees are intellectual property specialist Ryan Holte of the University of Akron School of Law, tapped for the U.S. Court of Claims, and Gregory Maggs of the George Washington University School of Law, tapped for the U.S. Court of Appeals for the Armed Forces. As a fellow academic (though not one in line for any such appointment), I must say I am quite pleased by the Trump administration’s willingness to look to the academy to fill the federal bench.

With these nominations, the administration continues its established practice of announcing judicial nominees at regular intervals. This keeps the pipeline full and maintains pressure on the Senate to confirm qualified nominees. These nominees, as those before, continue to be highly qualified. Overall, the Trump administration’s nominees compare favorably with those of any administration in recent memory. As someone who has been quite critical of the president, I did not expect to see such high-quality judicial nominees — but high-quality they continue to be.

For prior posts on Trump’s judicial nominations, see here and here. Many related posts are indexed here.

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