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

Thursday, December 29, 2016

Ed Kilgore, At NY Mag's Daily Intelligencer, Asks President Obama To Use Recess Appointments: Kilgore's Strategy Won't Work & This Is Why


Ed Kilgore, at NY Mag’s Daily Intelligencer column, argues that President Obama should use his recess appointment power in the waning days of his administration. See Ed Kilgore, Here’s How Obama Could Go Nuclear on Trump and the GOP Before Leaving Office, NY Mag: Daily Intelligencer (Dec. 28, 2016, 8:39 AM), http://tinyurl.com/hnd458y. Once Upon A Time ..., this strategy might have worked. But not anymore: Kilgore’s proposed strategy is now plainly prohibited by the Supreme Court’s decision in NLRB v. Noel Canning, No. 12–1281, 134 S. Ct. 2550 (2014) (Breyer, J.). In Noel Canning, the Court held:

In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.” 

Id. at 2567 (emphasis added)). Mitch McConnell, the Senate Majority Leader, will be sure to have no ten-day recesses prior to Trump’s taking office.

It might be argued, by a parliamentary literalist, that Noel Canning only controls true intra- and inter-session breaks within a single 2-year Congress. Here Congress is adjourning sine die: this is a break between two 2-year Congresses. (Cf. “You brought two too many.” http://tinyurl.com/gl7odhp). But even if Noel Canning is not controlling, even if the President could make valid recess appointments along the lines Kilgore suggests, the Senate (with the cooperation of the House and President) could immediately terminate the President’s recess appointments simply by adjourning and then immediately reconvening (or by doing so twice back-to-back). 



Why? Recess appointments only last until “the End of the[] next [Senate] Session.” Article 2, Section 2, Clause 3. If a determined Senate majority advances the calendar, terminates that session, and immediately convenes the next session, then … that will terminate the prior recess appointments. It is that simple.
 

Kilgore argues that the only route the Republicans would have to remove these recess appointees* would be through slow moving lawsuits which would take months, all the while leaving these appointees in place during the first year of Trump’s new administration. See Kilgore (“TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.”). Kilgore is entirely wrong. No lawsuits would be needed—just two swings of the Majority Leader’s gavel. Just two swings and the recess appointees would be out.**

Kilgore’s bad advice simply makes the opposition look poorly informed and less than loyal to the Constitution and the rule of law (as established by the Supreme Court in an opinion drafted by the Courts liberal wing). Such a strategy, particularly when it is bound to fail, will win the opposition no (new) supporters and no (future) elections.

Seth

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

My prior post: Seth Barrett Tillman, This Is What I Think And This Is What Other People Think Scholarship Looks Like, The New Reform Club (Dec. 27, 2016, 5:27 AM). [here]

* Obviously, we are discussing Judicial Branch appointees (and certain Executive Branch appointees) who have tenure in office: protection against removal by the President. 

** See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), https://ssrn.com/abstract=956164http://tinyurl.com/zaofnyc; Brian C. Kalt, Response, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88 (2007), https://ssrn.com/abstract=959051http://tinyurl.com/jkq2trc; Seth Barrett Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94 (2007), https://ssrn.com/abstract=962100http://tinyurl.com/jaj4ysm; Brian C. Kalt, Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman101 Nw. U. L. Rev. Colloquy 108 (2007), https://ssrn.com/abstract=962762http://tinyurl.com/h7vc49n.










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


Sunday, December 25, 2016

Merry Christmas and Happy Hanukkah from The Moon

Remembering the important things, as these men did, seems longer ago and even farther away with each passing year, and to some, even more silly. Merry Christmas and Happy Hanukkah to all those here gathered: May we smile today, give thanks, and be inspired in the coming year to perpetuate their silliness...

It was on Christmas Eve 1968 that the astronauts of Apollo 8, Frank Borman, Jim Lovell, and Bill Anders, became the first of mankind to see an earthrise from the orbit of the moon, and looking back on us, they spoke these words:


Anders: "We are now approaching lunar sunrise. And, for all the people back on earth, the crew of Apollo 8 have a message that we would like to send to you...

"In the beginning, God created the Heaven and the Earth. And the Earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters. And God said, Let there be light; and there was light. And God saw the light, that it was good; and God divided the light from the darkness."

Lovell: "And God called the light Day, and the darkness He called Night. And the evening and the morning were the first day. And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters. And God made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament; and it was so. And God called the firmament Heaven. And the evening and the morning were the second day."

Borman: "And God said, Let the waters under the Heaven be gathered together unto one place, and let the dry land appear; and it was so. And God called the dry land Earth; and the gathering together of the waters He called Seas: and God saw that it was good."

And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas, and God bless all of you, all of you on the good earth."


It is good. God bless us, every one.

Friday, December 23, 2016

A Soldier's Christmas

The Battle of the Bulge
Belgium
1944




Thursday, December 22, 2016

The Presidential Compensation Clause & Trump’s “No New Deals” Motto


Today’s soup du jour is the Presidential Compensation Clause (“PCC”). The PCC provides:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

U.S. Const. art. II, § 1. cl. 7. This clause applies to the President. We know this clause—the PCC—applies to the President because it says: “the President.”

The PCC directs Congress to set the President’s “Compensation” by statute. Once Congress determines the President’s compensation by statute, Congress cannot increase that compensation or decrease it (during that President’s 4-year term). Furthermore, neither Congress nor the States may supplement the President’s compensation with “other Emoluments.”

What is an “Emolument”?

Some people argue that an emolument is a “benefit” or, indeed, any benefit. Certainly, there is some reason to think that “Emolument” extends to any “undeserved benefit,” such as a gift or present. But does the-Emolument-as-any-benefit position extend to what is already yours?

Let me give you a hypothetical. Trump deposits $50,000 in The First Bank of New Jersey (“FBNJ”), a closely-held and privately owned bank in Newark, New Jersey. He makes the deposit on January 20, 2016: a full year before he takes office. The day he takes office, January 20, 2017, FBNJ is seized by state authorities: the stockholders, directors, officers, and managers are charged with violating state racketeering and state money laundering laws (in regard to non-Trump accounts). The state, New Jersey, prevails, and, as a result, the stockholders’ interests in the bank are wholly transferred to New Jersey. A state government agency of New Jersey now owns, controls, and manages FBNJ. No depositor money has been lost. On January 20, 2018, a full year into his administration, President Trump is touring New Jersey. He stops by “his” bank. He goes to the teller at the window, and he seeks to cash his personal cheque** for $10,000 on his FBNJ account. The conversation goes likes this:

Teller: Mr. President, I cannot honor your cheque.
Trump: Why the **** not? Don’t I have $50 ****in grand in my account?
Teller: Yes, Mr. President, you do, but we have special instructions regarding this account. Let me ask you to direct your inquiries to the Managing Vice President, Mr. Gringotts.
            ….
Trump: I am very busy, and I have important private and public business to conduct. You had better have a good reason for delaying me here today?
Gringotts: Mr. President, I would like to help you, but this bank (which is, in effect, a state agency) has been directed by a higher state government authority to block your accessing your account until you are out of office.
Trump: I am going to sue you—yuuuge!
Gringotts: Mr. President, please, let me explain. This bank is now owned, controlled, and managed by New Jersey. The New Jersey Attorney General’s office solicited a legal opinion or memorandum from a very reputable law firm—Eisen, Painter & Tribe LLP—and that opinion took the view that this bank’s turning your money over to you (even on the same terms and conditions that we do for all our other customers) is a “benefit” or “emolument” forbidden by the U.S. Constitution’s Presidential Compensation Clause. That clause binds us as well as you. Here is a copy of the memorandum; I think we may have already sent you a copy.
Trump: But it is my money, not your money. Your giving me what is mine is no “benefit.” What is more, you are required by contract and by statute to honor my cheques.
Gringotts: Mr. President, the memorandum takes the view that state contract law and state and federal banking statutes are trumped by the Constitution. In confidence, Mr. President, I voted for you, and I think the equities are all on your side. But my own view cannot come into this. I am a state government officer, and I am instructed by higher authority not to honor your cheque. Should a court direct me to do otherwise, of course, I will comply.
Trump: That’s a crazy result. What’s more you know its crazy. Giving me what is mine is not a forbidden gift, present, or “emolument.” A President ought not to receive more favorable terms than the general public (except as is incidentally necessary to carry out pressing public business) but he ought not be treated worse than the general public either. I will say it again: I am going to sue—yuuuge!

In the hypothetical above, the President is not so much asking for a benefit, as he is asking for what is already his. In other words, where a contract, property, or statutory right has already vested, the PCC does not come into play. Old deals (negotiated with state or federal instrumentalities prior to becoming President) go forward, and Trump can demand that those old deals remain in force and honored. New deals, that is, those deals which are individually negotiated with state or federal instrumentalities and which are not equally accessible to all other U.S. citizens on the same terms and conditions, are (as a general matter) forbidden once Trump becomes President.

That is not my idiosyncratic view. That is the long held view of the staff at the Department of Justice’s Office of Legal Counsel (“OLC”). For example, in 1964, OLC staff determined that President Kennedy could keep both his presidential compensation and also continue to receive naval retirement pay. In other words, “the President [may] continu[e] to receive payments to which he was, prior to his taking office, entitled as a matter of law” notwithstanding that those additional payments come from the United States Treasury. President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 189 & n.4 (1981) (Simms, Dep’y Asst. Att’y Gen.) (quoting prior Kennedy memorandum). Likewise, OLC took the position that President Reagan could continue to receive both his presidential compensation and also continue to receive the state pension which he had already accrued as governor of California. Id. at 190; see also Norman L. Eisen, Richard Painter & Laurence H. Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, Governance Studies at Brookings  5 n.13, 11 n.42 (Dec. 16, 2016), http://tinyurl.com/zsxrayj (citing OLCs Reagan memorandum approvingly). 

The point is that not every “benefit” is an “emolument,” even if the benefit flows directly from a state’s treasury or from the U.S. Treasury. Old deals and vested rights go forward; new deals are not impossible, but they are subject to heightened scrutiny, and for that reason, they should be avoided where reasonably possible.


Unlike others, I am not asking you to accept the OLC’s conclusions because OLC is an “authority.” Instead, I would have you review their memoranda and see if their reasoning is sound. Conclusory statements absent cogent argument, evidence, and precedent you are free to and should reject. Likewise, where OLC memoranda put forward conclusions absent any discussion of weighty contrary precedent, you should ignore such views as wholly unsound and unprofessional. There are those who will tell you otherwise. They will tell you that you must accept all OLC memoranda as authoritative because OLC is a highly professional organization at the pinnacle (or near pinnacle) of the American legal establishment, and its work product deserves as much deference as would an independent Article III court. When they tell you that—ask them—did they feel that way about the so-called torture memoranda?

Seth

** That’s right: I am not using American-English. 

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

My prior post: Seth Barrett Tillman, Discussions, Quotations, Citations to Tillman on “Office” and “Officer,” The New Reform Club (Dec. 20, 2016, 6:29 AM). [here]  



Tuesday, December 20, 2016

Discussions, Quotations, Citations to Tillman on "Office" and "Officer"


Newspaper(s):
Adam Liptak, Trump’s Foreign Business Deals May Test a Constitutional Limit, The NY Times, Nov. 22, 2016, at A22, http://tinyurl.com/jpryysm ;

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 ;

Think Tank Report(s):
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 ;

Radio Report(s):
Mark Garrison, Trump tweets three short words to address future conflicts of interest, Marketplace (Dec. 13, 2016, 3:28 PM), http://tinyurl.com/zotj9fl (at 1:33ff) ;

Mark Garrison, Here are Trump’s options for the Trump Organization, Marketplace (Nov. 30, 2016, 3:51 PM), http://tinyurl.com/z7zcnoy (at 1:20ff) ;

Blogpost(s):
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 ;

Bob Bauer, Presidents and Conflicts of Interest, More Soft Money Hard Law (Nov. 28, 2016), http://tinyurl.com/gpuczjf ;

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 ;

Ron Blitzer, Fmr White House Lawyers: Trump Guaranteed to Violate Constitution When He Takes Office, Law Newz (Dec. 19,  2016, 10:48 AM), http://tinyurl.com/jhvz774 ;

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 ;

James Dennin, 12 top law scholars say Donald Trump could defy the Constitution his first day in power, Mic (Dec. 17, 2016), http://tinyurl.com/hncvq3n ;

Randall Eliason, The Emoluments Clause, Bribery, and President Trump, Sidebars (Nov. 29, 2016), http://tinyurl.com/zzwwdk2 ;

David Elder, Trump’s Golden Parachute from the Emoluments Clause?, Daily Kos (Dec. 16, 2016, 8:08 PM GMT), http://tinyurl.com/jyh8fdu ;

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 ;

Andy Grewal, The Trump Hotel Isn’t Unconstitutional, Notice & Comment (Nov. 22, 2016), http://tinyurl.com/z5a3npj ;

Jon Hecht, Donald Trump Is Kind Of Right About This Thing The President Can’t Do, Bustle (Nov. 22, 2016), http://tinyurl.com/z3tboku ;

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, The NY Times (Nov. 21, 2016), http://tinyurl.com/z936g7x ;

Tom McCarthy, Why Donald Trump’s potential conflicts of interest are so important, The Guardian (Dec. 14, 2016, 11:0 GMT), http://tinyurl.com/gp8ycjm (linking to Tillman’s article in The NY Times) ;

Greg Price, Donald Trump’s Conflicts Of Interest: What Is Emoluments Clause Bill Proposed By Elizabeth Warren, Democrats?, International Business Times (Dec. 15, 2016, 1:47 PM), http://tinyurl.com/hcd9z6s ;

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), http://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 ;

Jesse Singal, Daily Intelligencer, The Case for Donald Trump’s Impeachability, New York Mag (Dec. 20, 2016, 8:33 AM), http://tinyurl.com/jlj37gz

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 ;

Richard Tofel, Emoluments Clause: Could Overturning 185 Years of Precedent Let Trump Off the Hook?, ProPublica (Dec. 13, 2016, 8:00 AM), http://tinyurl.com/gpe5xfs ;

Winand Von Petersdorff, Die Emolument-Klausel: Ein Hotel in Washington, Frankfurter Allgemeine (Dec. 16, 2016), http://tinyurl.com/hsqlqd4 ;

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 ;

What Is an Emolument? Donald Trump Has People Talking About This Part of the Constitution, TelegraphMedia (Dec. 2016), http://tinyurl.com/zcgpwn9 ;

Citations By Implication:
David G. Savage, The obscure constitutional provision that could be trouble for Trump, LA Times (Dec. 9, 2016, 11:20 AM), http://tinyurl.com/jno72p3 ; (“Some scholars say the drafters of the Constitution intended the ban to apply only to appointed officers of the United States, not elected officials. When Hamilton listed the officers of the new government, he did not include the president or members of Congress. And when President Washington was given gifts by visiting diplomats, he kept them and did not ask for consent from Congress.”); 


Bernard Condon & Julie Bykowicz, Trump Invites Trouble if he keeps Businesses: Ethics Experts, AP (Dec. 12, 2016, 12:49 PM EST), http://tinyurl.com/zwg5z4a ; (“There is disagreement on the issue because the language in the clause is vague and hasn't been subject to court rulings.”);  

Seth

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

Seth Barrett Tillman, Paul Blumenthal’s Huffington Post Mistake, The New Reform Club (Dec. 12, 2016, 1:14 PM). [here


Friday, December 16, 2016

Call me pisher, Or: Donald Trump's landslide [not]

"[We had a] massive landslide in the electoral college.”

As a butthurt "journalist" reminds us in the butthurt Los Angeles Times, Trump's 306-232 EC win was only 46th-best in 52 presidential elections. And if you google "trump landslide electoral college" you'll see a ton more of delicious butthurt.

Of course to normal people, 306-232 looks like quite a thumping, but we're told 56.97% of the EC ain't a landslide, let alone massive.

OK, so be it. Once again Trump loses the battle of the factoids. Make that President Trump.

It's all Trump's pushback [he always pushes back] on the left's attack on his legitimacy which continues to this very moment. As Dick Morris called it back in the Clinton days, the "permanent campaign." Bill did it, Barack did it, and each will have had left office with their approval ratings in the black.

By contrast, President Dubya Bush didn't believe in the "permanent campaign" and so he left office deeply in the red. If you don't act like you're winning, most of the public will believe you're not. As things began to sour in Iraq and in the economy in 2006, Dubya went into a shell. He lost both houses of Congress that year, and though he limped home with the war in Iraq re-won as the result of his single-minded shepherding of The Surge, whatever was not left in ashes was soon turned to ashes by his successor.

[Indeed, it's said Poppy Bush felt campaigning vigorously for re-election versus upstart Bill Clinton in 1992 was a bit beneath him. Forget the "permanent campaign"; Poppy wouldn't even campaign-campaign!]

Well, that was the end of that, and the beginning of something else. The Permanent Campaign isn't just directed to the "24/7 news cycle," we have the First Twitter President, folks.

It's early in the going with President Trump, but already he is showing signs of not repeating Jimmy Carter's fundamental error of losing his own party, and now not repeating the Bush errors of trying to absorb attacks with patience, class and dignity rather than vigorously beating them back.

Trump's approval numbers have been rising after starting at a historic post-election low, and I certainly think he would not have won the presidency had he not seemed so convinced he would win despite his political obituary already having been printed by 98% of the experts.

As for Trump's [lack of?] mandate, I'd say he has enough of one as long as he's in harmony with his party--which he is so far. FTR [and pardon my Wiki], in the House elections, the GOP got 3 million more votes [a 2.6% margin], fairly obviating the Democrat argument about Hillary getting the plurality of the presidential popular vote.

All that remains for Trump to do is continue to play "strong horse," and build his popular support--just as he did in somehow winning the presidency in the first place--and if that takes a bit of hyperbole like "landslide," well, call him pisher.



Monday, December 12, 2016

Paul Blumenthal’s Huffington Post Mistake



There is one person who seemed to think that the [Foreign Emoluments] [C]lause did not apply to [the President]. President George Washington received gifts from both the French ambassador to the United States and from the Marquis de Lafayette. The latter sent Washington the key to the Bastille after its storming during the early days of the French Revolution. This occurred when Lafayette was a member of the Estates-General and commander in chief of the national guard.

Paul Blumenthal, What Is The Emoluments Clause And How Does It Apply To Donald Trump?, The Huffington Post (Dec. 1, 2016, 7:39 PM ET), http://tinyurl.com/hety2au. The point of the passage is that Washington was a Framer. He took an oath as President to uphold the Constitution. He received two French diplomatic gifts: he accepted both, and he kept both. He never asked for congressional consent, nor did Congress grant its consent. 

As far as I know, I am the only scholar to have made these connections and the larger point: the current idée fixe that the Foreign Emoluments Clause applies to the presidency cannot be squared with President Washington’s conduct. Full stop. Washington’s conduct crystallizes the meaning of what might otherwise be ambiguous constitutional text. Unless you are willing to argue that Washington was an idiot or a crook that determines the issue at hand. The Foreign Emoluments Clause does not apply to the President. Moreover, the dominant view is that Washington’s conduct deserves special deference in regard to both “foreign affairs” and “presidential etiquette.”[1] 


I note that … Blumenthal does not mention my name. Blumenthal does not cite (or link to) any of my publications. Blumenthal does not even suggest that the idea he put forward is one which originated in someone else’s scholarly publications. Blumenthal just makes the argument above as if it were part of some well-known historical narrative. It is not.

Still it is a relief that Blumenthal does not mention me or my publications. Why? Blumenthal wrote “[LaFayette] sent Washington the key to the Bastille after its storming during the early days of the French Revolution. This occurred when Lafayette was a member of the Estates-General ….” (emphasis added) Blumenthal is mistaken here. The storming of the Bastille was on July 14, 1789. LaFayette gave Washington the key to the Bastille during March 1790. Both these events happened after the Estates-General ceased to exist, circa June 1789. Contra Blumenthal, neither event happened “when LaFayette was a member of the Estates-General.”

One way to avoid elementary errors is to quote and cite other people’s scholarship accurately. Or Mr Blumenthal could have interviewed me. He still can, and he should, particularly if he has interviewed several others who have taken the opposing point of view.

I am so glad Mr Bristow made me memorize all those dates back in tenth grade.


Seth 

[1] See Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 309–10 (2012); id. at 309 (“Over the centuries, the constitutional understandings that crystallized during the Washington administration have enjoyed special authority on a wide range of issues ....”); Letter from George Washington to Bushrod Washington (July 27, 1789), in 30 The Papers of George Washington 366, 366 (John C. Fitzpatrick ed., 1939) (“You cannot doubt my wishes to see you appointed to any office of honor or emolument in the new government .... My political conduct in nominations ... must be exceedingly circumspect and proof against just criticism, for the Eyes of Argus are upon me, and no slip will pass unnoticed that can be improved into a supposed partiality for friends or relatives.”); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 642 n.450 (1994) (“[I]t seems to us that if anyone’s post-ratification views merit deference, Washington’s do. Washington, always sensitive to the opinions of his countrymen, consistently strove to stay within the confines of the Constitution.”); see also Anne Twomey, The Constitution of New South Wales 438 (2004) (“As it is an elective office, and not generally subject to the direction or supervision of the government, one would assume that it is not an office held ‘under the Crown’.”).

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

Seth Barrett Tillman, Tillman’s Response to a Liberal Journalist’s Inquiries, The New Reform Club (Dec. 7, 2016, 5:50 AM). [here]