"Courage is rightly esteemed the first of human qualities because...it is the quality which guarantees all others."—Churchill

Thursday, December 01, 2016

Congressional Research Service Issues Revised Guidance on the Foreign Emoluments Clause



In 2012, CRS's position was "The President and all federal officials are restricted by the Constitution, at Article I, Section 9, [C]lause 8 ...." Jack Maskell, CRS, R42662, Gifts to the President of the United States, 4 (Aug. 16, 2012), https://www.fas.org/sgp/crs/misc/R42662.pdf

In 2016, CRS has issued revised guidance (despite contrary Department of Justice/Office of Legal Counsel authority): the Foreign Emoluments Clause "might technically apply to the President...." Jack Maskell, CRS, Conflict of Interest and “Ethics” Provisions That May Apply to the President, 2 (Nov. 22, 2016) (emphasis added), http://tinyurl.com/joxwq2w.

This is a substantially revised position from an organization which (unlike DOJ/OLC) is not responsible to the President. Jack Maskell and CRS are to be commended for their courage, and for staying abreast of new research and new thinking, as opposed to accepting unsupported conclusory statements issued by the Office of Legal Counsel. 

The dam has burst. Those modern scholars and policy wonks who have stated without support that the Foreign Emoluments Clause applies to the President now must defend their position with actual arguments and evidence, as opposed to bluster and group think. 

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Seth Barrett Tillman, How The Recounts Pose A Risk To Mike Pence, The New Reform Club (Nov. 28, 2016, 7:36 AM). [here


Monday, November 28, 2016

How The Recounts Pose A Risk To Mike Pence



At American Thinker, Richard Baehr explains:

The recount in Wisconsin, and the coming ones in Michigan and Pennsylvania will not change the outcomes in any of the states. No recount ever changes thousands of votes. I do not think that is the purpose.

The recounts, if done by hand, which can be demanded, may take longer than the last day for completing the official counts in a state and directing Electoral College voters. If all 3 states miss the deadline, Trump is at 260, Hillary at 232.  No one hits 270.

Then this goes to Congress, where the House voting 1 vote per state elects Trump, and Senate selects Pence. This would be first time this happened since 1824, but in that case, John Quincy Adams won in the House, though he had fewer electoral college votes than Andrew Jackson.

If this goes to the US House and Senate, and the result is the same as result from the Electoral College without the recounts, why do it?  The answer is to make Trump seem even more illegitimate, that he did not win the popular vote  (he lost by over 2.1 million), he did not win the Electoral College (did not reach 270), and was elected by being inserted into the presidency by members of his own party in Congress.

Richard Baehr, The Democrats’ real strategy in launching recounts, American Thinker (Nov. 27, 2016), http://tinyurl.com/gllh85f. Baehr is right, but the Stein-Democrat recount strategy only works if all 3 states fail to recount their states’ votes in time and fail to appoint a Trump-slate of electors. As long as 1 of the 3 states completes a timely recount, Trump-Pence are home-and-dry.

Still if all 3 states fail to make a timely recount and fail to appoint their slate of Trump-Pence electors…then the presidential race will be thrown into the House where each State has one vote. Under Article II and the Twelfth Amendment, Trump has to carry a majority of state delegations (26 of 50). There is a separate quorum requirement: 2/3 of the States (34 of 50) must have one or more members present. Trump can probably meet this bar: 32 of the state delegations in the 115th Congress will have Republican majorities (albeit some are narrow majorities), and 11 other state delegations have 1 or more Republican members. So the Republicans should be able to reach a quorum of 34 States with one or more members present.

However, if all three 3 states fail to make a timely recount and fail to appoint their slate of Trump-Pence electors…then the vice presidential race will be thrown into the Senate. Under Article II and the Twelfth Amendment, Pence will need a majority of the “whole number” of senators. The Republicans have such a majority. But the Twelfth Amendment also has a quorum requirement: “two-thirds of the whole number of Senators.” [2/3 is 67 of 100 senators, assuming all elected Senators are alive and sworn during the proceedings to select a Vice President.] The Republicans cannot meet this bar, at least not absent Democratic participation. By absenting themselves, the Democrats can block the narrow Senate Republican majority from selecting Pence.

Worst or best case situation…depending on your point of view…the Senate fails to elect a Vice President and the House fails to elect a President. How could the latter happen? Paul Ryan will be in the chair. Ryan might delay the vote or he might allow the vote to be delayed by dilatory opposition motions. If something like that should happen, and if no President and no Vice President are elected by the House and by the Senate, respectively, then the Presidential Succession Act of 1947 kicks in…and the acting presidency will fall to…the Speaker of the House (if he chooses to take it), and if the Speaker fails to take it, then to the Senate President Pro Tempore (“SPPT”) (if he chooses to take it), and if they fail to take it, then to cabinet members. By this time, most (perhaps, all) of President Obama’s cabinet will have already resigned, and so the acting presidency might fall to someone not holding a highly significant cabinet post.

There is now a significant academic literature suggesting that it is unconstitutional for the acting presidency to fall to House and Senate officers, such as the Speaker or SPPT. (I note that I do not share this view, which is now a commonplace in academia.) Based on this view, should the Speaker or SPPT (as opposed to Donald J. Trump) succeed to the (acting) presidency, it is likely that an outgoing Obama-era cabinet member would sue to displace (as in “replace”) the Speaker or SPPT who is acting as President.


None of the eventualities described above would be good. 

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Seth Barrett Tillman, Where My Views Were Discussed, Quoted, or Cited: Volokh, Daily Caller, Bloomberg, New York Mag, NY Times, etc, The New Reform Club (Nov. 22, 2016, 12:58 PM). [here




Saturday, November 26, 2016

Falwell II nixes top Edu job; Snowflakes safe for now

According to John Fea's The Way of Improvement Leads Home blog, we learn that Jerry Falwell Jr. turned down Pres-elect Trump's offer of the bully pulpit at the Department of [Mis]Education.

It would have been glorious: One of the biggest swamps in America, sorely in need of a good draining.






“I let them know one of my passions is reforming higher education and education in general,” Falwell said in an interview Tuesday.

Falwell said higher education has to “get back to the basics of teaching” and eschew the “ivory tower” mentality that has led to “salaries that are out of this world.”

In public K-12 education, Falwell said, school vouchers could “transform the country and the inner cities” by giving parents an educational choice that provides “a whole generation of young people a new lease on life.”

Falwell said he also favors a repeal of the so-called Johnson Amendment, a portion of the federal tax code, named for then-U.S. Sen. Lyndon B. Johnson of Texas, that prohibits tax-exempt institutions like schools and religious organizations from directly endorsing political causes.

Falwell had harsh words for how he believes liberal colleges reacted to Trump’s election, “having these little cry sessions and canceling classes and basically saying the wrong guy won.”

“Those are nonprofit schools. They are subject to the Johnson Amendment ... and they’re saying, ‘We’ll help you mourn since the wrong guy won,’” Falwell continued. “If Liberty had done that after Obama had won, we would have been called on the carpet on the Johnson Amendment and our tax exemption would have been at stake.”

Tuesday, November 22, 2016

Where My Views Were Discussed, Quoted, or Cited: Politico, Volokh, Daily Caller, Bloomberg, New York Mag, NY Times, etc

Jonathan H. Adler, The Emoluments Clause—Is Donald Trump violating its letter or spirit?, The Washington PostThe Volokh Conspiracy (Nov. 21, 2016, 7:15 PM), http://tinyurl.com/h5d7863

Josh Blackman, Can Congress Impose Ethics Requirements on the President or the Supreme Court?, Josh Blackman’s Blog (Nov. 23, 2016), http://tinyurl.com/hoekdgv 

Madeline Conway, The 229-year-old sentence liberals hope will sink Trump, Politico (Nov. 22, 2016, 07:46 PM EST), http://tinyurl.com/j3k8zg7 

Kevin Daley, Here’s Why Trump’s Business Interests Could Trigger A Constitutional Crisis, The Daily Caller (Nov. 21, 2016, 1:46 PM), http://tinyurl.com/hhgwpuz


John Fea, What is the Foreign Emoluments Clause?, The Way of Improvement Leads Home (Nov. 26, 2016), http://tinyurl.com/z5ms68g 

Noah Feldman, Trump’s Hotel Lodges a Constitutional Problem, BloombergView (Nov. 21, 2016, 2:45 PM EST), http://tinyurl.com/jc6wstt

Eric Levitz, Daily Intelligencer, The Constitution (Probably) Won’t Save Us If Trump Becomes a Kleptocrat, New York Mag (Nov. 21, 2016, 3:12 PM), http://tinyurl.com/hkebq5u

Adam Liptak, Donald Trump’s Business Dealings Test a Constitutional Limit, NY Times (Nov. 21, 2016), http://tinyurl.com/z936g7x

Michael Ramsey, Seth Barrett Tillman on Foreign Gifts to Presidents, The Originalism Blog (Nov. 20, 2016, 6:46 AM), http://tinyurl.com/hecosgc

Glenn Reynolds, Seth Barrett Tillman: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, Instapundit (Nov. 19, 2016, 6:35 PM), tinyurl.com/zvq764v


Ruthann Robson, Brief History of the Emoluments Clause—and Argentina, Constitutional Law Prof Blog (Nov. 22, 2016), http://tinyurl.com/hevge8n 

Steven D. Schwinn, Tillman on Trump and Emoluments, Constitutional Law Prof Blog (Nov. 20, 2016), http://tinyurl.com/hcuuq44

Sébastian Seibt, États-Unis: Donald Trump nie toute possibilité de conflit d'intérêts pour le president, France24 (Nov. 23 2016), http://tinyurl.com/zgpyetk 

Jeff Stein, Donald Trump and the Emoluments Clause, explained, Vox (Nov 23, 2016, 12:13 PM EST), http://tinyurl.com/jbkuxad 

Rachel Stockman, Trump is Right, Conflict-of-Interest Rules Don’t Apply to Him, Law Newz (Nov. 23, 2016, 9:54 AM), http://tinyurl.com/z8o23tj



Rachel Stockman, Legal Scholar: ‘Wildly Inaccurate’ to Accuse Trump of Violating Constitution With His Businesses, Law Newz (Nov. 22, 2016, 12:29 PM), http://tinyurl.com/hzbhs5r 

S.B. Tillman, Constitutional restrictions on foreign gifts don’t apply to the president, Hot Air (Nov. 20, 2016), http://tinyurl.com/hkn2dmq

Seth Barrett Tillman, The NY Times’ Room-for-Debate: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, The New Reform Club (Nov. 18, 2016, 10:45 AM), http://tinyurl.com/hyfl7yt


Olivia B. Waxman, What Is an Emolument? Donald Trump Has People Talking About This Part of the Constitution, Time (Nov. 22, 2016, 4:07 PM ET), http://tinyurl.com/j85dnpu 

Debra Cassens Weiss, Is Donald Trump about to violate the emoluments clause?, ABA Journal (Nov. 22, 2016, 10:03 AM CST), http://tinyurl.com/zddfdkv


What is an emolument and why do we care?, National Constitution Center: Constitution Daily (Nov. 22, 2016), http://tinyurl.com/h6bbthw 


Interviewed by NPR’s Marketplace. 
Sabri Ben-Achour, This arcane constitutional clause could be trouble for TrumpMarketplace (Nov. 22, 2016, 3:32 PM), http://tinyurl.com/hu8s8s4 (“Some scholars argue it does not apply to the President.”)

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, The NY Times’ Room-for-Debate: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, The New Reform Club (Nov. 18, 2016, 10:45 AM), http://tinyurl.com/hyfl7yt 




Sunday, November 20, 2016

Twilight of the Sneer

The career empathyzer suffers a complete lack of any genuine empathy. When it comes to empathy for those between I-5 and I-95, the career empathyzer is always short on funds. This election was a giant NSF notice: of the 700 counties that twice voted for Obama, 1/3 flipped to Trump.

And yet, still, and although, they might have forgiven the career empathyzers their snub; they might have continued bearing our economy on their backs, with the corporatists riding on the top deck – fancying they were aloft a hover-car that runs only on their own cleverness. And they might have overlooked being called stupid by the managers and college kids “who don’t know shit about how to do anything but are full of ideas about how I have to do my job," even though the working class are less likely to trust either major party, or to believe common stupid liberalisms, like Hiss wasn't a spy; like Marx isn't wrong; like OJ didn't do it; like Americans won't lose their doctor; like Clinton can't lose; like Trump can't win.

But sticking the “deplorables” with the tab for America’s moral sins, real or imagined, roused their attention. Even a dog knows the difference between being stumbled over and being kicked. Indeed, even the locution -- "basket of deporables" -- is an act of conscious literary inventiveness, weaponizing the adjective "deporable" into a neologism: "deplorable" as a noun -- as a person -- as a fellow American. This was not a slip of tongue. This was malice aforethought.

The conservative NeverTrump movement, for its part, gave the "deplorables" the cover of a safe bargain: Trump is no conservative! Why, in fact, he is a lifelong Democrat! 'Even better,' reasoned the working class: 'we will defeat the hated Democrats without handing victory to the hated Republicans.' The careerists will buy stock in more programming calling Trump voters "stupid," without a thought to the possibility that these voters might have learned a trick or two about politics -- even though they aren't paid a handsome salary to write op-eds about it.

Will the working class continue supporting Trump, and will that support transfer to Republicans? To begin to answer, first ask: Will careerists finally learn to speak with empathy about a long-thought-politically-dead voter group? Freshly chastened, it's likely they will try. And thus the winner of the contest for the working-class vote will be: which party can rack up the most distance from its old, corporatist ways? Who can make the federal government less relevant to their lives? Who will learn simply to say, without sneering, and indeed with conviction: Make America Great Again?

Saturday, November 19, 2016

Friday, November 18, 2016

The NY Times' Room-for-Debate: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents



President-elect Trump has many extensive and diverse business interests, including some abroad, and some of his interests involve foreign government entities. In order to ensure against ethical conflicts, both real and perceived, Trump should place his interests in those holdings beyond his personal control, i.e., into an independently managed blind trust. Such a move would be wise: consistent with America’s best political traditions and practices.

Still the Constitution does not always demand that we and our government act wisely. And that is the situation here. The Foreign Gifts Clause provides: “[N]o Person holding any Office of Profit or Trust under them [i.e., 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.”

Does the Foreign Gifts Clause and its office under the United States language apply to the presidency? There are three good reasons to believe that it does not.

First, the Constitution does not rely on generalized “office” language to refer to the President and Vice President. Where a provision is meant to apply to such apex or elected officials, the provision expressly names those officials. For example, the Impeachment Clause applies to the “President, Vice President and all civil Officers of the United States ….”

Second, the Foreign Gifts Clause was given an early construction by George Washington. While he was President, Washington received two gifts from officials of the French government—including a diplomatic gift from the French ambassador. Washington accepted the gifts, he kept the gifts, and he never asked for or received congressional consent. There is no record of any anti-administration congressman or senator criticizing the President’s conduct. As Professor Akhil Amar has reminded us: the precedents set by President Washington and his administration deserve special deference in regard to both “foreign affairs” and “presidential etiquette.”

Finally, in 1792, again during the Washington administration, the Senate ordered Secretary of State Alexander Hamilton to supply a list of persons holding office under the United States and their salaries. Hamilton’s 90-page responsive list included appointed officers in each of the three branches, but did not include any elected officials in any branch. In other words, officers under the United States are appointed; by contrast, the President is elected, so he is not an officer under the United States. Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.

Again, as a matter of constitutional law, Trump is not obligated to divest himself of his foreign business interests. Still, his coming up right smack against the ill defined boundary of constitutional propriety, and perhaps going over that line, as arguably the Clintons and the Clinton Foundation did, will not endear Trump to his voters. Millions of voters took a chance on Trump on election day: what Trump does here will be a good first test to determine if those voters were right to take that chance. 


The above appeared in: Seth Barrett Tillman, Room for Debate, Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, The NY Times, Nov. 18, 2016, 10:41 AM, http://tinyurl.com/jpbhom5

 

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, National Conference Of State Legislatures: Number Of State Legislative Seats Held By Each Party, The New Reform Club (Nov. 16, 2016, 2:36 AM). [here




On the "Fake News" Controversy






“Perhaps an editor might begin a reformation in some such way as this. Divide his paper into four chapters, heading the first, Truths; the second, Probabilities; the third, Possibilities; the fourth, Lies. The first chapter would be very short, as it would contain little more than authentic papers and information from such sources as the editor would be willing to risk his own reputation for their truth. The second would contain what, from a mature consideration of all circumstances, his judgment should conclude to be probably true. This, however, should rather contain too little than too much. The third and fourth should be professedly for those readers who would rather have lies for their money than the blank paper they would occupy.”



I must say that with my friends on the left, if I only got my information from their "trusted" sources, I would think and vote as they do. I don't disagree about what they know, only about what they don't.

Wednesday, November 16, 2016

National Conference Of State Legislatures: Number Of State Legislative Seats Held By Each Party

As of November 7, 2016 (pre-election), the Ds held 3,163 state legislative seats across the 50 states, and the Rs held 4,118 seats.

As of November 10, 2016 (post-election), the Ds hold 3,135 state legislative seats across the 50 states, and the Rs hold 4,162 seats.

The Ds lost 28 seats nationally. 
The Rs picked up 44 seats.

[Seats held by third-parties and independents or on a non-partisan basis are not included.]
[Some seats are yet to be determined.]

Bottom line: the Rs picked up over 40 state legislative seats in 2016. 

The shift to the Rs represents just over 1/2 of 1% of all state legislative seats (i.e., (44) / (7,297)). Interesting, 12 House state legislative chambers and 2 Senate state legislative chambers are controlled by 5 or fewer seats. Small changes in seat distribution can have highly significant effects. 

Seth

See generally http://www.ncsl.org

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman on Irish TV & Radio, The New Reform Club (Nov. 11, 2016, 11:10 AM). [here





Monday, November 14, 2016

Trump's Team of Rivals

My first reaction to Pres-elect Trump giving "alt-right" [for lack of a better term] Breitbart boss Steve Bannon a top slot—even if more symbolic than substantive—was that he's determined not to let his right flank slip, and indeed turn and rend him.

Jimmy Carter's biggest political failure was losing control of his own party, and as Douglas Brinkley fascinatingly chronicles here,* it was Carter's disaffected left flank that did him in more than Ronald Reagan.

I don't know if Trump [or his advisors] learned from history, but so far at least he just avoided a major snare—losing your own side without whom you cannot hope to lead or govern. That and hiring GOP chair Priebus as Chief of Staff—Reince knows all the players: Keep your friends close and your enemies closer.
___________
*"Tales of Carter's contempt for and ineptitude at politicking were legion on Capitol Hill throughout his term in office. "When it came to the politics of Washington, D.C., he never really understood how the system worked," Tip O'Neill wrote in his memoirs. "And although this was out of character for Jimmy Carter, he didn't want to learn about it either." In fact, O'Neill couldn't escape the feeling that Carter was working against fellow Democrats--including the Speaker himself. "Once, when the city of Boston applied for a government grant for some roads, I called the Carter people to try to speed it along," O'Neill wrote. "Instead of assisting me, however, they did everything possible to block my way."

Other perceived slights were more subtle..."

Friday, November 11, 2016

Seth Barrett Tillman on Irish TV & Radio

Prime Time, RTÉ (Nov. 10, 2016, 9:00 PM) (interviewer, guest, and Tillman), http://tinyurl.com/jhw6jhd

The Pat Kenny Tonight Show, TV3 (Nov. 9, 2016, 9:30 PM) (panellist), http://tinyurl.com/zp7ovkuhttps://www.tv3.ie/3player/show/1032; and, 



Cormac Ó hEadhra, The Late Debate: U.S. Election Night, RTÉ Radio 1 (Nov. 8, 2016, 9:00 PM) (panellist), http://tinyurl.com/jy3ngp4

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Staff of the Great Northern Railway who fell in World War I and World War II, The New Reform Club (Nov. 11, 2016, 9:29 AM). [here



Staff of the Great Northern Railway (Ireland) who fell in World War I and World War II

Below is a photograph of a plaque in Connolly Station: the primary railway station in Dublin, Ireland. 

I thought it a fitting image for Veterans Day / Armistice Day. It is a side of Ireland that is little known. 

It reads: "In memory of the following members of the Staff of the Great Northern Railway (Ireland) who laid down their lives for their Country in the Great War, 1914-1919 <names> Also the Following who made the Supreme Sacrifice in the Second World War. 1939-1945 <names>". 

On two prior occasions, I have written on these issues: 

Seth Barrett Tillman, Ireland and World War II, The New Reform Club (Sept. 19, 2016, 2:34 PM), http://tinyurl.com/jjwqujq; and, 

Glenn Reynolds, This Doesn’t Reflect Well on Ireland: Why Irish Soldiers Who Fought Hitler Hide Their Medals: An Update from Seth Barrett Tillman, Instapundit (Jan. 2, 2012, 6:16 PM), http://pjmedia.com/instapundit/134529

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, A Summary of the 2016 Governors Races, State Legislative Races, and State-level Death Penalty Referenda, The New Reform Club (Nov. 11, 2016, 5:15 AM). [here]