Tillman on FOX 26’s “Houston Live & Local”

 

Seth Barrett Tillman, ‘Tillman on FOX 26’s “Houston Live & Local”,’ New Reform Club (Aug. 8, 2025, 3:56 AM), <https://reformclub.blogspot.com/2025/08/tillman-on-fox-26s-houston-live-local.html>; 

Asia

Letter from Empress Wende to Emperor Taizong (Tang Dynasty) (circa 636 CE):

During my lifetime, I made no contributions to the people, and I should not harm them in my death. I hope that you will not build a tomb to cause the people to labour and the empire to waste resources. Make a hill my tomb, and only use brick or wooden implements in the tomb. I hope that Your Imperial Majesty will continue to be close to honest men and stay away from those lacking virtues; that you will accept faithful words and reject wicked flattery; that you will decrease [your personal] labours and stop [your personal] hunting. Even as I go into the underworld, if these things happen, I will have no regrets. It is not necessary to summon the sons and daughters back here; if I see them mourn and cry, I will only be saddened. (emphasis added)

I Kings 6:7

And the house, when it was built, was built of stone made ready before it was brought there, so that there was neither hammer nor axe nor any tool of iron heard in the house. (emphasis added) (See also: Exodus 20:22; Deuteronomy27:5-6.)

Seth Barrett Tillman, ‘Asia,’ New Reform Club (Aug. 4, 2025, 1:51 PM), <https://reformclub.blogspot.com/2025/08/asia.html>; 

Requesting Copies of Domestic and Foreign PhD Dissertations

 

A few months ago, I contacted the library at Yale University, and I requested a PDF copy of a 2024 PhD dissertation from a Yale department. I received a response stating: “At the request of the author or degree granting institution, this graduate work is not available to view or purchase until February 04 2027.” Not available “to view”?!? 

Earlier this week, I reached out to the library at the University of Tokyo, and I requested a PDF copy of a 2020 PhD dissertation from a department in that university. I received a response stating: “Due to copyright law, we are unable to provide PDF copies to anyone. We appreciate your understanding.”

How is this possible? When did this pattern become widespread—as it appears to be? I had thought one of the primary purposes of PhD dissertations was to advance public knowledge.

Yes, one can write the author(s), as I have done. But why should that be necessary? And what if the author is dead or otherwise unreachable or unavailable? Or what if the author simply refuses an otherwise legitimate request? It is almost as if there are elements in universities who seek to generate bad will for their institutions and for academia at large. But why?

Seth

Seth Barrett Tillman, ‘Requesting Copies of Domestic and Foreign PhD Dissertations,’ New Reform Club (Aug. 1, 2025, 6:00 AM), <https://reformclub.blogspot.com/2025/08/requesting-copies-of-domestic-and.html>; 

A Response to Professor Jack Rakove

 

Editors(@)WashingtonMonthly.com

 

Re: Jack Rakove, ‘It’s Not Just a Constitutional Crisis in the Trump Era. It’s Constitutional Failure,’ Washington Monthly (June 27, 2025), <https://tinyurl.com/33er4nf7>.

Professor Rakove wrote:

The Court thus casually squandered an opportunity to clarify the meaning of a provision that badly needs enforcement. All previous presidents had scrupulously adhered to the Emoluments Clauses, which embody the fundamental principle that presidents should neither seek nor hold office for private gain.

Two other cases [involving the Foreign and Domestic Emoluments Clauses], however, progressed in the lower courts, but once they were appealed, the Supreme Court slow-walked them until Trump left office, leaving the issue moot.

These claims are not correct, and Rakove puts not a shred of evidence forward supporting his positions.

The facts are these. The parties on both sides of the two cases before the U.S. Supreme Court represented to the Court that the cases were moot. In these circumstances, where the parties no longer had a live, continuing dispute, the Court had no real choice but to dismiss the case. The effect of that, under settled doctrine, was to vacate the lower court decisions which had adjudicated the meanings of the Emoluments Clauses. As a result, there are no binding federal circuit court precedents or persuasive district court precedents expounding on the scope of the Emoluments Clauses’ less-than-entirely-clear language. In fact, the situation was considerably more complex than plaintiffs’ Supreme Court filings let on. Plaintiffs’ official-capacity claim against Trump (qua the President) was moot once Biden became President. But plaintiffs’ individual-capacity claim against Trump (qua the individual) remained actionable. Plaintiffs chose not to pursue their individual-capacity claim. Why they did this only they know.

Moreover, had these cases reached the U.S. Supreme Court in a timely fashion, then the Court may have had time to reach a decision on the merits. But the trial court proceedings moved slowly. There were three such lawsuits. The first case, Citizens for Responsibility and Ethics in Washington (CREW) v. Trump (filed in the United States District Court for the Southern District of New York), was filed timely: it was brought during January 2017, at the beginning of Trump’s first term. But the Blumenthal v. Trump complaint (filed in the United States District Court for the District of Columbia) was lodged considerably later: during June 2017, not January 2017. Likewise, the DC & MD v. Trump complaint (filed in the United States District Court for the District of Maryland) was also lodged during June 2017. There were other causes of delay. Plaintiffs filed multiple amended complaints in each case. And plaintiffs repeatedly sought extensions in regard to the timing of their briefs.

Defendant Trump-the-President (i.e., the official-capacity defendant) and Defendant Trump-the-Individual (i.e., the individual-capacity defendant) only sought one extension in one of the three cases on one occasion—a single extension which was only prompted by plaintiffs’ having first sought an amended schedule seeking an extension for plaintiffs. Had the plaintiffs adhered to the original schedule, the defendants would not have sought any extension.

Similarly, plaintiffs, when seeking to appeal, were also dilatory. Rather than seeking to appeal and seeking certiorari soon after an unfavourable final judgment, plaintiffs took the full (or nearly the full) time period in which to file: their appeals to the federal circuit courts of appeals and their certiorari petitions for discretionary U.S. Supreme Court review.

As for the lower courts, Judge Sullivan (District of Columbia) and Judge Messitte (District of Maryland) were slow in calling for and holding an oral argument after briefing had closed, and they were slow to issue a final order after having held oral argument. Indeed, Messitte bifurcated his response to the official-capacity defendant’s motion to dismiss. In other words, Judge Messitte held two oral arguments and issued two separate opinions based on the official-capacity defendant’s single motion to dismiss. And, Messitte never resolved the individual-capacity defendant’s motion to dismiss. Notwithstanding his unwillingness to address Trump’s individual-capacity motion to dismiss, Messitte nevertheless ordered Trump to submit to discovery. Odd.

The delay, such as there was, was not caused by the Supreme Court and it was not caused by Trump and his lawyers. The simple fact is that: Plaintiffs ran out the clock. It is likely that they had strategic reasons for doing so. Perhaps they thought that the U.S. Supreme Court would be an unfriendly forum, and they sought to end the lawsuits before losing on the merits? It was plaintiffs’ tactical decisions which left the U.S. Supreme Court with no opportunity and no time to act on these appeals. And again: the plaintiffs chose not to actively pursue their individual-capacity claim against Trump. Why? If there is blame here, look first to the plaintiffs and their (lawyers’) strategic choices. Then look to the lower courts. There was one exception: Judge Daniels (Southern District of New York) worked impartially, promptly, and professionally in every sense. A true role model.

Professor Rakove’s blaming on the Supreme Court today’s lack of controlling and persuasive precedent regarding the meaning of the Constitution’s Foreign Emoluments and Domestic Emoluments Clauses is, at best, mistaken, and at worst, Orwellian. And let’s not forget that part (albeit, a small part) of the delay was engineered by Professor Rakove and his co-amici filing a brief and then subsequently filing a retraction because their factual claims were not defensible. See Letter from Counsel for the Legal Historians to Judge George B. Daniels, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Oct. 3, 2017), ECF No. 96, <https://tinyurl.com/ybd783uf>. 

Finally, Professor Rakove wrote that “All previous presidents had scrupulously adhered to the Emoluments Clauses.” (emphasis added) Really? President George Washington received, accepted, and kept several diplomatic and state gifts from the French ambassador to the United States and from a second French government official. Washington never asked for and he never received consent from Congress. Likewise, President Washington purchased land at auction from the federal government in the new federal capital. All this is well known today, as it was well known in the 1790s. There is no record of any of Washington’s contemporaries—in Congress, in the press, or in private correspondence—including among those in the Anti-Administration congressional faction—suggesting any impropriety, much less a constitutional violation. There is no record of any biographers, public intellectuals, or academics then or since suggesting Washington’s conduct violated either Emoluments Clause. No record until Trump. And then the past had to be written. Why Rakove would be willing to participate in such a history project, only he knows. The rest of us can only guess. 

Seth

PS: Just to be clear: I participated (along with co-amici) in the three Emoluments Clauses cases.

Seth Barrett Tillman, ‘A Response to Professor Jack Rakove,’ New Reform Club (July 16, 2025, 1:42 AM), <https://reformclub.blogspot.com/2025/07/a-response-to-professor-jack-rakove_16.html>; 

Must Article III Courts Issue Explanations for their Orders?

 

Extract from: Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. 481, 502 & n.53 (2016) (peer review), <http://ssrn.com/abstract=2646888>, <https://tinyurl.com/2p9efyek>. 

 

[Tillman (2016):] “The issuance of opinions by courts is a convention or tradition of the American judicial system, but such opinions are not mandated by the express text of Article III, by any federal statute, or even by any federal judicial decision.⁵³ In short, in the American judicial system, orders are primary, not opinions.” [Id. at 502 (footnote omitted).]

[Tillman (2016):] “See, e.g., Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 126 (2000) (‘The operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment.’); Charles A. Sullivan, On Vacation, 43 Hous. L. Rev. 1143, 1161 (2006) (‘An opinion cannot be central to dispute resolution because there is no requirement that an appellate court issue an opinion, and frequently such courts decide cases without any opinion.’ (emphasis added)); see also Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1327 (1996) (‘The President’s ordinary obligation to enforce a judgment extends only to the raw judgment itself: the finding of liability or nonliability and the specification of the remedy. That duty does not impose on the President any requirement in future cases to follow the reasoning that led to the court’s judgment or to extend the principles of that judgment beyond the issues and parties encompassed by it.’); id. at 1328 (‘[T]he issuance of opinions is not an essential aspect of the judicial power.’); cf. Daniel J. Meltzer, Executive Defense of Congressional Acts, 61 Duke L.J. 1183, 1187–88 (2012) (‘Suppose President Lincoln and President Nixon both believed the courts got the Constitution wrong. Must they nonetheless honor the courts’ decisions? If so, is any obligation limited to complying with specific orders, as Lincoln famously suggested, or must the executive more broadly follow the doctrines laid down by the courts?’ (citing Lincoln’s First Inaugural Address) (internal citation omitted)). But compare Lawson & Moore, supra at 1328 n.284 (suggesting that legal ‘requirements that judges give reasons for their conclusions . . . are therefore constitutionally questionable’), with Sullivan, supra at 1161 n.90 (explaining that under Federal Rule of Civil Procedure 52(a), federal district courts must ‘explain their decisions when they sit as the trier of fact,’ such as when a district court hears a case absent a jury). See generally Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 passim (1993).” [Id. at 502 n.53.] 

[Tillman (July 15, 2025):] I might add that any duty or aspirational norm regarding a court of record putting forward an opinion or otherwise advancing a reasoned explanation for an order falls heaviest on final judgments, and only to a lesser extent on interim orders prior to a substantive review on the merits. It is not as if every trial court regularly produces (or even could produce) a written explanation in regard to every hearsay or other objection. Frequently, such courts merely rule and do not put forward any reasoning, even orally. And certainly, discovery orders, although sometimes issued as speaking orders, often come absent advancing any rationale for the relief granted and the relief denied. All this is well known to trial court practitioners, even if this issue is left somewhat unclear in academic casebooks reviewing primarily (or, perhaps, only) appellate caselaw.

Seth Barrett Tillman, ‘Must Article III Courts Issue Explanations for their Orders?,’ New Reform Club (July 15, 2025, 3:25 AM), <https://reformclub.blogspot.com/2025/07/must-article-iii-courts-issue.html>; 

A Lawfare Research Project

 

David L. Noll, Lawfare Research Project 25-4, ‘Civil Contempt Against a Defiant Executive,’ Lawfare (1 July 2025), <https://ssrn.com/abstract=5346771>.

 

Professor Noll wrote:

When Union troops entered the city, they arrested John Merryman, a pro-slavery Democrat who was organizing supporters of the Confederacy, and imprisoned him at Fort McHenry. The army allowed Merryman access to a lawyer. He petitioned Chief Justice Roger Taney, who maintained chambers in Baltimore as circuit justice, for a writ of habeas corpus. [page 31 (footnotes omitted)]

Union Army troops arrested Merryman some twelve days after they entered Baltimore. Merryman did not live in Baltimore—his home was in Cockeysville—some 18 miles from Baltimore. What evidence is there that Taney had chambers in Baltimore? Moreover, it is astonishing that Noll would write that Merryman was “organizing supporters of the Confederacy.” Noll puts forward no evidence in support of that bold, inflated claim. And the authority on which Noll relies (that is, a journal article by Professor Vladeck) makes no such claim. As for counter-evidence, see ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312 (Baltimore, National Biographical Publishing Company 1879) (explaining that shortly before Merryman’s seizure by the U.S. Army, Merryman “was introduced to [U.S.] Major Belger, and offered to render him or the [Union] troops any service required; and if necessary would slaughter his [Merryman's] cattle to supply the[] [Union troops] with food”). I certainly hope that Noll is not relying on the government’s indictment. An indictment is only a mere accusation; it is not evidence of guilt. That is blackletter law. 

 

Seth Barrett Tillman, ‘A Lawfare Research Project,’ New Reform Club (July 13, 2025, 6:12 AM), <https://reformclub.blogspot.com/2025/07/a-lawfare-research-project.html>;

See also: Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) Br. J. Am. Leg. Studies 43–65 (2024) (peer review), <http://ssrn.com/abstract=4157572>; 

and, 

Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. 481–540 (2016) (peer review), <https://tinyurl.com/2p9efyek>, <http://ssrn.com/abstract=2646888>.

The Things You Find When Visiting A Library With An Older Collection of Books on U.S. History

An Elector, ‘To the Free Electors of this Town,’ Boston 1788, in 2 Charles S. Hyneman & Donald S. Lutz, American Political Writing During the Founding Era 1760–1805, at 705–06 (1983) (describing “electioneering” as a “corrupt” practice);

1 Joseph L. Blau & Salo W. Baron, The Jews of the United States 1790–1840, at 28 (1963) (“One article [of the North Carolina Constitution of 1776] granted complete freedom of religion; another required al state officials to be theists and Protestants and to accept the divine authority of both Old and New Testaments. As a Jew, Jacob Henry could not conscientiously conform to the latter provision.”); 

15 The Documentary History of the Ratification of the Constitution, 3 Commentaries on the Constitution / Public and Private / 18 December 1787 to 31 January 1788 (John P. Kaminski & Gaspare J. Saladino eds. 1984):

‘The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents,’ at 15 DHRC 13, 29 (explaining that a quorum of the Senate is 14, and a treaty may be assented to by the Senate by 10 members, that is 2/3 of a quorum); 

Luther Martin, ‘Genuine Information V’(Baltimore’s ‘Maryland Gazette,’ 8 January 1788) 15 DHRC 348, 351–52 (expounding on the history of the draft Ineligibility Clause); id. at 352 (“And as the system is now reported, the president having the power to nominate to all offices . . . .” (italics in the original)); 

Seth Barrett Tillman, ‘The Things You Find When Visiting A Library With An Older Collection of Books on U.S. History,’ New Reform Club (July 10, 2025, 8:55 AM), <https://reformclub.blogspot.com/2025/07/the-things-you-find-when-visiting.html>; 

The Academic Left and Right

What started in 2017 was a real eye opener. It was part and parcel of a series of events, continuing to this day, revelatory of a decline of civility in U.S. academic institutions, law, and other fields. A large part was driven by Trump derangement syndrome. But it’s more than that. It’s really quite shocking when academics who have preached civility in front of large audiences depart, in their own publications, from the standards they have regularly espoused elsewhere. But that is where we are. This behavior is omnipresent among the woke left. But it’s not just there. Among right-of-center legal academics, you will find some who will not give the time of day to other academics who have departed, in even the most minor way, from what the former believe to be acceptable legal orthodoxy. It is miserable, mean-spirited fanaticism borne of misplaced self-pity.

Seth Barrett Tillman, ‘The Academic Left and Right,’ New Reform Club (June 30, 2025, 14:53 PM), <https://reformclub.blogspot.com/2025/06/the-academic-left-and-right.html>; 

The above is an excerpt from: R. Yitzchok Frankfurter, ‘Going Mainstream: How a Little-Known Orthodox Jewish Law Professor in Ireland Became a Prominent Legal Voice in the Trump Era,’ (Issue 720) Ami Magazine, May 28, 2025 / 1 Sivan 5785, at 180–203 (interviewing Tillman), <https://amimagazine.org/2025/05/27/going-mainstream/>, <https://ssrn.com/abstract=5282511>.

Trump-47 and the Vacant Article III Judicial Posts

There are some 60 vacant Article III (federal) judicial posts. Trump-47 has put forward four nominees for vacant federal district court positions (all in Missouri), and he has put forward one nominee for a vacant federal appellate position (in the Sixth Circuit). There are five (other) vacant federal appellate positions without any nominees, and there are 50 vacant federal district court positions without any nominees. Additionally, there is one vacant Article I judicial post in the United States District Court for the Virgin Islands. It too lacks a nominee.

There are eight vacant federal district court positions in TEXAS without any nominees. FLORIDA has five vacant federal district court positions. Both LOUISIANA and NORTH CAROLINA have four vacant federal district court positions. Texas, Florida, Louisiana, and North Carolina—each has two Republican U.S. Senators. All four states voted for Trump in 2024. 

All the extant Trump-47 nominees were submitted on May 12, 2025. There has been no activity in over a month. 

A month.

Seth

Seth Barrett Tillman, ‘Trump-47 and the Vacant Article III Judicial Posts,’ New Reform Club (June 16, 2025, 17:38 PM), <https://reformclub.blogspot.com/2025/06/trump-47-and-vacant-article-iii.html>; 

Vacancies are reported here: current vacancies: <https://www.uscourts.gov/data-news/judicial-vacancies/current-judicial-vacancies>, and future vacancies: <https://www.uscourts.gov/data-news/judicial-vacancies/future-judicial-vacancies>. 

Correcting a Popular Misconception

 

Hi,

I have attached a copy of: Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012). Pages 410 to 417, touching on the history and practice under the U.S. Constitution’s Foreign Emoluments Clause, may interest you.

For what it is worth, I do not believe the scope of the Foreign Emoluments Clause is obvious. 

I also think [your] blaming everything that happened on the Supreme Court in relation to the prior Emoluments Clauses cases is misplaced. The lower court precedents were wiped out by the regular application of Munsingwear doctrine. The parties on both sides represented to the Supreme Court that the cases were moot. However, the plaintiffs chose not to pursue the individual-capacity claim against Trump, that is, only the official-capacity claim was actually moot.

Had these cases reached the U.S. Supreme Court in a timely fashion, then the Court may have had time to reach a decision on the merits. But the trial court proceedings moved slowly. The first CREW v. Trump complaint (S.D.N.Y.) was timely: it was brought during January 2017. But the first Blumenthal v. Trump complaint (D.D.C.) was lodged much later: during June 2017, not January 2017. Likewise the first DC & MD v. Trump complaint (D. Md.) was also lodged during June 2017. Throughout these three cases, plaintiffs repeatedly sought extensions in regard to the timing of their briefs, and this was in addition to plaintiffs’ filing multiple amended complaints in each case. Defendants (both the official-capacity [or DOJ] defendant, and the individual-capacity [or personal-Donald Trump] defendant only sought one extension in one of the three cases—a single extension which was only prompted by plaintiffs’ having first sought an amended schedule seeking an extension for plaintiffs. [Plaintiffs, when seeking to appeal, were also dilatory. Rather than seeking to appeal and seeking certiorari soon after an unfavourable final judgment, plaintiffs took the full (or nearly the full) time period in which to file an appeal or certiorari.] Moreover, Judge Sullivan (D.D.C.) and Judge Messitte (D. Md.) were slow in calling for and holding an oral argument after briefing had closed, and they were slow to issue a final order after having held oral argument. Indeed, Messitte bifurcated his response to the official-capacity defendant’s motion to dismiss. Judge Messitte held two oral arguments and issued two separate opinions based on the official-capacity defendant’s single motion to dismiss. And, Messitte never resolved the individual-capacity defendant’s motion to dismiss.

Plaintiffs ran out the clock. That’s why the U.S. Supreme Court was left with no time and with nothing to do as the official-capacity claim became moot when Biden became President. And again: the plaintiffs chose not to actively pursue the individual-capacity claim. If there is blame here, look first to the plaintiffs and their (lawyers’) strategic choices. Then look to the lower courts. (By contrast, Judge Daniels (S.D.N.Y.) worked impartially, promptly, and professionally in every sense.*) Your blaming on the Supreme Court today’s lack of controlling and persuasive precedent regarding the meaning of the Constitution’s Foreign Emoluments Clause is, at best, mistaken, and at worst, Orwellian. 

Just to be clear: I participated (along with co-amici) in the three Emoluments Clauses cases as an amicus. (Professor Blackman et al. represented me.)

Seth

Seth Barrett Tillman, ‘Correcting a Popular Misconception,’ New Reform Club (May 23, 2025, 4:52 AM), <https://reformclub.blogspot.com/2025/05/correcting-popular-misconception.html>; 

*It is a misfortune for the legal system and wider society that today a federal judge’s meeting such aspirational expectations must be reported at all, and when reported, it is noteworthy because it is a fortunate, and somewhat, unexpected result.

 

NEW CHURCH IDEA

 "The more you sin, the more Jesus loves you!"™

How Soon They Forget: Arresting State Judges (CORRECTED)

Steve Burkholder, ‘Massachusetts judge and ex-official accused of preventing migrant’s arrest by ICE,’ Washington Post (Apr. 25, 2019, 7:46 PM), <https://tinyurl.com/ymdkc8us>: 

“A Massachusetts state court judge and a former court officer were charged by federal prosecutors Thursday with obstructing justice for allegedly preventing an immigration and customs officer from arresting an undocumented immigrant at a courthouse west of Boston last year.”

Arthur John Keeffe, ‘Practicing Lawyer’s Guide to the Current Law Magazines,’ 48 American Bar Asso. J. 491, 491 (1962) (explaining that during the American Civil War, federal authorities arrested Judge James L. Bartol of the Maryland Court of Appeals and Judge Richard Bennett Carmichael of the Maryland Circuit Court, and the “latter was arrested while conducting court”).

What is described above happened under President Obama Trump-45 and under President Lincoln. Judges are not above the law; judges cannot interpose their courthouse and personal rules and policies against federal officers. And when state judges violate the law, they must be arrested .  .  . like you and me and anyone else. We all know that—or, at least, we should. 

Seth 

Seth Barrett Tillman, ‘How Soon They Forget: Arresting State Judges,’ New Reform Club (Apr. 25, 2025, 14:12 PM) (CORRECTED), <https://reformclub.blogspot.com/2025/04/how-soon-they-forget-arresting-state.html>;