Plaintiffs’ position is that a State (such as Florida) by conveying
property to the President has granted an “emolument.” That’s entirely wrong.
The only body which can grant an emolument to a position is the institution
which created the position or the institution which is charged with fixing the
position’s compensation. As for the Presidency—the only body which can fix its
compensation (or grant “emoluments”) is Congress.
Consider the untoward consequences of Plaintiffs’ contrary position.
The Constitution’s Ineligibility Clause also speaks to “emoluments.” That
clause states: “No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emoluments whereof
shall have been increased during such time.” U.S. Const. art. I, § 6, cl. 2 (emphasis added). Now let’s
say there was a Democratic President and a Democratic Congress, and the
President sought to appoint a sitting senator to a cabinet post, whose federal
compensation had not been increased for more than six years. Under Plaintiffs’
position, where an “emolument” is any benefit, then any single Republican state
legislature could grant that cabinet position further “compensation” or further
“emoluments,” say $10 annually, and voilà, the Ineligibility Clause would bar
the senator’s appointment to a federal position. Not only would the senator be
barred, under Plaintiffs’ position, but the federal Congress could not roll
back the state legislature’s salary increase—so, no Saxbe Fix would be
possible either. What this shows is that although a State can give a gift or
“present” to a federal official, that is, a benefit absent consideration, a
State cannot increase the federal official’s compensation or “emoluments” attached
to any particular federal position, including the presidency. It follows that
Florida’s conveying the MDC Parcel [purportedly to President Trump] amounts to granting a gift or present, but not
an “emolument.” This structural consideration is some reason to reject
Plaintiffs’ position as to the scope of the Domestic Emoluments Clause’s
“emoluments”-language.
The better way to think about the Domestic Emoluments Clause, U.S. Const. art. II, § 1, cl. 7, is that
it works a limited restriction on state-federal dual office-holding. The U.S.
Constitution does not expressly bar federal officials from concurrently holding
state positions. The Domestic Emoluments Clause does not bar the President from
holding any state position; rather, it bars a President who also concurrently
holds a state position from receiving the emoluments of the state
position. In other words, the President must receive his regular compensation
exclusively as determined by Congress. For example, in the event that the
federal electors elect a sitting governor to be President, it may happen that
the governor’s State might be in disarray (e.g., an insurrection). The Domestic
Emoluments Clause would allow the governor to hold both positions concurrently,
leaving to his discretion to withdraw from the state position only once the
emergency in his home State has ended, and without forcing him to delay his
becoming President. Fortunately, such disarray, at the state level has been
rare, and has not impinged on presidents or presidents-elect. Thus, we have few
sources focusing on the original public meaning of this constitutional provision.
Between 2017 and 2021, several inferior courts discussed the meaning(s) of
“emoluments” in connection with lawsuits allegedly arising under the Foreign
and Domestic Emoluments Clauses. All those decisions were reversed or otherwise
vacated by the U.S. Supreme Court under Munsingwear Doctrine. None of
those cases were from the Southern District of Florida or the Eleventh Circuit.
Where the compensation or emoluments of a federal statutory position is increased during a senator’s term, the President may still seek to appoint a senator who is not otherwise eligible to hold that position under the Ineligibility Clause. In such circumstances, as once applied to Senator Saxbe, Congress may choose to roll back the compensation of the federal statutory position to what it had been prior to its emoluments having been increased. This is the so-called “Saxbe Fix.” At that point, the practice has been to permit the President to make the appointment. Still the practice is a contested one. See generally John F. O’Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89, 122–56 (1995).
The above is an extract from: Brief of Professor Seth Barrett Tillman and
Landmark Legal Foundation as Amici Curiae in Support of Defendants,
Sistrunk Seeds Inc. v. Donald J. Trump in his official capacity, Civ. A. No. 1:26-cv-23365-RAR-LFL
(S.D. Fla. brief filed Aug. 13, 2026), ECF No. 41, 2026 WL -------.
Seth Barrett Tillman, ‘The Better Way To Think About,’ New Reform Club (Aug. 14, 2026, 2:33 AM), <https://reformclub.blogspot.com/2026/08/the-better-way-to-think-about.html>;
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