"There is always a philosophy for lack of courage."—Albert Camus

Tuesday, December 27, 2016

This Is What I Think And This Is What Other People Think Scholarship Looks Like

This is what I think scholarship looks like ... I drafted what follows below as a suggested entry (or part of an entry) for a treatise by another author.


Neither the Supreme Court nor any other federal court has addressed either the scope of the Constitution’s Foreign Emoluments Clause (“FEC”) or its “Office of Profit or Trust under them [the United States]” language. U.S. Const. art. I, § 9, cl. 8; 3 Cyclopedia of American Government 8 (Andrew C. McLaughlin & Albert Bushnell Hart eds., N.Y., Peter Smith 1963) (1914) (“The question of what is an office of trust or profit under the United States, has never been completely settled.”); Michael J. Glennon, When No Majority Rules: The Electoral College and Presidential Succession 23 (1992) (same); Gerald S. Schatz, Note, Federal Advisory Committees, Foreign Conflicts of Interest, the Constitution, and Dr. Franklin’s Snuff Box, 2 D.C. L. Rev. 141, 158 (1993) (“The Supreme Court never has ruled on the question of what constitutes an ‘Office of Profit or Trust’ under th[e] [Foreign Emoluments] [C]lause.”).

Scholarly and other persuasive authority on this issue remains divided. Compare, e.g., Applicability of the [Foreign] Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 2009 WL 6365082, at *3 (2009) (Barron, Acting Asst. Att’y Gen.) (announcing in ipse dixit that “[t]he President surely ‘hold[s] an[] Office of Profit or Trust[] [under the United States]’”), with Memorandum to Honorable Kenneth A. Lazarus, Asso. Counsel to the President, from Antonin Scalia, Asst Att’y Gen., Office of Legal Counsel, Re: Applicability of 3 C.F.R. Part 100 to the President and Vice President, at 2 (Dec. 19, 1974) (“[W]hen the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.”), https://ssrn.com/abstract=2889011, with Jack Maskell, Cong. Res. Serv., Conflict of Interest and “Ethics” Provisions That May Apply to the President, 2 (Nov. 22, 2016) (explaining that the Foreign Emoluments Clause “might technically apply to the President”), http://tinyurl.com/joxwq2w.

Some scholars have argued that the Foreign Emoluments Clause extends to elected federal officials, including the President and members of Congress. See, e.g., Raoul Berger, Impeachment: The Constitutional Problems 226 n.11 (1974) (arguing that the FEC extends to Senators); Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It 18 (2011) (arguing that the FEC extends to members of Congress); Lawrence Lessig, A Reply to Professor Hasen, 126 Harv. L. Rev. F. 61, 70 (2013) (same); Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009) (arguing that the FEC extends to the presidency and members of Congress); Zephyr Teachout, Rebuttal, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. Colloquy 30 (2012) (same); Zephyr Teachout, Closing Statement, Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. U. L. Rev. Online 200 (2014) (same); Paul R. Verkuil, Separation of Powers, the Rule of Law and the Idea of Independence, 30 Wm. & Mary L. Rev. 301, 310 & n.45 (1989) (arguing that the FEC extends to members of Congress); Adrian Vermeule, The Constitutional Law of Official Compensation, 102 Colum. L. Rev. 501, 510 (2002) (asserting that the Foreign Emoluments Clause applies to “all federal officeholders”); Norman L. Eisen & Richard W. Painter, Trump Could Be in Violation of the Constitution His First Day in Office, The Atlantic, Dec. 7, 2016 (“The [Foreign] Emoluments Clause applies to all persons holding an office of trust or profit with the United States government—no exceptions. It applies to the president, the vice president, and the members of Congress. No one is above the law.”), http://tinyurl.com/zlgrh6u.

Others have argued that the FEC extends to all positions in the Executive and Judicial Branches, including the President. See, e.g., Akhil Reed Amar, America’s Constitution: A Biography 182 (2005) (“[T]he more general language of Article I, section 9 barred all federal officers, from the president on down, from accepting any ‘present’ or ‘Emolument’ of ‘any kind whatever’ from a foreign government without special congressional consent.”). See generally Akhil Reed Amar, The Law of the Land: A Grand Tour of our Constitutional Republic 332 n.8 (2015); Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995).



Finally, Seth Barrett Tillman has argued that the FEC extends only to appointed positions in any of the three branches, but to no elected officials. See, e.g., Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012); Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107Nw. U. L. Rev. Colloquy 180 (2013); Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13 Election L.J. 336 (2014) (peer reviewed). See generally Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013); Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014); see also William Baude, Constitutional Officers: A Very Close Reading, Jotwell (July 28, 2016) (peer reviewed) (“That is not to say that [Tillman’s] position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof.”), http://tinyurl.com/hnrfx8pJosh Blackman, Scalia in 1974 OLC Opinion: “Officer” in Constitution “Invariably Refers to Someone Other than the President”, Josh Blackman’s Blog (Dec. 22, 2016), http://tinyurl.com/hbuzzzn; Josh Blackman, Can Congress Impose Ethics Requirements on the President or the Supreme Court?, Josh Blackman’s Blog (Nov. 23, 2016), http://tinyurl.com/hoekdgvSee generally Andy Grewal, How a 110-Year Old Supreme Court Case May Save Trump From the Emoluments Clause,Yale J. on Reg.: Notice & Comment (Dec. 21, 2016), http://tinyurl.com/gqgfvkb; Andy Grewal, What DOJ Opinions Say About Trump and the Foreign Emoluments Clause, Yale J. on Reg.: Notice & Comment (Dec. 7, 2016), http://tinyurl.com/j8cmafh; Andy Grewal, The Trump Hotel Isn’t Unconstitutional, Yale J. on Reg.: Notice & Comment (Nov. 22, 2016), http://tinyurl.com/z5a3npj



This is what other people think scholarship looks like ... 

“It also has been suggested by one scholar that the [Foreign] Emoluments Clause did not cover elected, as opposed to appointed, federal office holders. See Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. C. 180 (2013). But this idiosyncratic suggestion is at best supported by ambiguous founding-era historical materials, rests upon a strained and counterintuitive textual analysis, and is flatly inconsistent with the recognized purpose of the Clause and the overwhelming thrust of modern (and historical) Executive Branch practice. See, e.g., Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. C. 30 (2012); Zephyr Teachout, Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. U. L. Rev. C. 200 (2013). Ultimately, only the most myopic and strained focus on the least plausible version of originalism to the exclusion of every other interpretive tool, coupled with a series of highly doubtful conclusions from the historical record, would support the conclusion that the President is not subject to the strictures of the [Foreign] Emoluments Clause. That approach must be rejected.”

Norman L. Eisen, Richard Painter & Laurence H. Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, Governance Studies at Brookings 9 n.32 (Dec. 16, 2016), http://tinyurl.com/zsxrayj

Seth

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

My prior post: Seth Barrett Tillman, The Presidential Compensation Clause & Trump’s “No New Deals” Motto, The New Reform Club (Dec. 22, 2016, 9:10 AM). [here


5 comments:

Tom Van Dyke said...

But this idiosyncratic suggestion is at best supported by ambiguous founding-era historical materials, rests upon a strained and counterintuitive textual analysis, and is flatly inconsistent with the recognized purpose of the Clause and the overwhelming thrust of modern (and historical) Executive Branch practice.

idiosyncratic
ambiguous
strained
counterintuitive
flatly inconsistent
overwhelming


The left cannot get through a sentence without pejoratives, hyperbole, and assuming--not arguing--its own conclusions.

"No it's not" is not an argument.

EndOfPatience said...

Well, Tribe was involved, so you knew it would be extreme Left, and thus fact and reason free.

Texpat said...

Honestly, Seth, must you continue to embarrass these people ? Haven't they suffered enough humiliation with the election ?

Happy Fella said...
This comment has been removed by the author.
Happy Fella said...

For another take on the Foreign Emoluments Clause and Prof. Tribe's interpretation thereof, see: http://ssrn.com/abstract=2888201