"I am not an anarchist"

My great-grandfather's sworn Declaration of Intention, 1919. I am reasonably certain our immigration papers do not include this language these days.

Why isn't Congress getting more done?

Over at Instapundit Ed Driscoll asks why Congress isn't getting more done. The GOP holds the presidency, the House and the Senate (although the Senate only by a very thin 2-vote margin). So, why isn't there more legislative action? I propose a four-part explanation for why Congress wasn't ramped up and reading to go with a set of reform bills once President Trump was sworn into office:

Why weren't the bills lined up and ready to go? Three reasons: expectations, time, focus and desire. Expectations: because the GOP establishment/insiders/leadership thought Trump would lose and didn't want to waste the time to put together a positive legislative agenda when their strategy was going to be more meaningless repeal votes and jamming legislative action on what they thought would be President HRC's agenda. 

Time: it takes months and months to draft a significant piece of legislation, and years to put together a thoughtful sequence of legislative pieces that work together to advance a coherent agenda. Trump's economic agenda, whatever its inadequacies, is coherent: defend American markets from overburdensome taxation, regulation and trade policies. Now, he might be all wrong about how to do that -- he might be completely wrong about the nature of the problems facing the American economy. But his agenda, given its assumptions, is coherent. Legislatively crafting that agenda -- coordinating all the moving parts -- to get it done in the first 100 days or even the first 1000 days would have required the legislative drafting to begin at least a year or two prior to the election. Nobody was thinking that far ahead at that point, not Trump, and certainly not the GOP establishment/insiders/leadership. 

Focus: Trump's team has been distracted since he won the election, both by the breadth of what it is working on and by the media assault that it is under 24/7. Reagan understood, when he came into office, that even if he was a 2 term president he would only really get 4 or 5 things done. So, he focused like a laser beam on those 4 or 5 things: tax cuts/reform, regulatory reform, putting the Soviet Union on the read to extinction, SDI (arguably a sub-set of his Soviet policy), and getting better judges appointed to the judiciary. And even Reagan's success on those 4 or 5 things was mixed (cough, Justice O'Conner, cough, Justice Kennedy, cough). When Reagan got distracted, bad things happened (Lebanon, Iran-Contra, the illegal immigrant amnesty). The point being, Reagan wanted to fix 1000 things and had to settle for ... addressing 4 or 5 things. Trump wants to fix 1000 things and is trying to fix 1000 things. He needs to prioritize. When he does (Gorsuch, regulatory reform) he gets results. When he doesn't (everything else), he stalls.

Desire: the GOP establishment very much wants Trump to fail. Mosts of those folks are part of the open borders-free trade globalization elite that very much would like to see the United States become more fully integrated into trans-national trading blocs -- at the cost of the nation's sovereignty and the prosperity of most of our people. Trump's campaign and administration thus far have been a solid repudiation of the globalization ethos. Trump is an American nationalist, as his inaugural address made clear. The GOP congressional leadership and the people who run the party are ... not. 

Bob Bauer’s Free Speech Problem and Ours

We have a free speech problem in America. I have talked about it before. It starts with the judiciary. See Seth Barrett Tillman, This Is What Is Wrong with the American Judiciary, The New Reform Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v. But the wider legal community has embraced the same legal philosophy. They want you to shut up, and if you don’t shut up, there is always punishment. Here is an example.

[First,] [t]he President resents Jeff Sessions’s decision to recuse himself and says that he would not have nominated an attorney general who intended to follow the recusal rules in this case. [Second,] [the President] also doubts that he can trust Deputy Attorney General Rod Rosenstein, because he was US Attorney in a city, Baltimore, that is Democratic in its voting pattern. In neither case does the [P]resident seem to appreciate, or be moved by, the conception of professionalism, including independence and impartiality of judgment. And, of course, Trump’s continued emphasis on the supreme importance to him of loyal subordinates in the ranks of law enforcement will not serve him well as prosecutors form a picture of him in evaluating evidence of obstruction.[1]

Let’s take these claims one at a time. “[T]he President resents Jeff Sessions’s decision to recuse himself and says that he would not have nominated an attorney general who intended to follow the recusal rules in this case.” First, Bob Bauer does not quote the President saying any such thing. What Bauer means is whatever the President said, this is what his words really mean. The second thing to note is the event at issue is one which happened in the past—it is not something which is happening now or is yet to happen; rather, it relates to Trump’s opinion as to a past event and how, hypothetically, he would have done it differently. So what is the problem? Trump, according to Bauer, resents Sessions’s decision. Is that view illegal? Is it a threat or a promise to do something illegal in the future? Bauer’s view amounts to this: the President holds the wrong opinion as to a past event. 

Now look at Bauer’s second claim: “[The President] also doubts that he can trust Deputy Attorney General Rod Rosenstein because he was US Attorny in a city…that is Democratic in its voting pattern.” Now maybe the President is wrong about this, or maybe he is right. Let’s say the better view is (as Bauer suggests) that the President’s view is the wrong view about DAG Rosenstein. The President did not say Rosenstein is a crook or that if Rosenstein does the same thing again, he will be jailed. The President merely expressed (according to Bauer) doubts. Is that view illegal? Is it a threat or a promise to do something illegal in the future? Again, Bauer’s view amounts to this: the President holds the wrong opinion as to past events.

In neither situation does Bauer suggest that the President is lying. Bauer does not suggest that the views expressed by the President are anything but what the President actually believes. In other words, part of Bauer’s criticism is that the President is telling the truth (at least, as the President sees it). In neither situation does Bauer suggest that it is a good thing for this or any President to express his views forthrightly to the nation’s citizens about how he sees the world. Indeed, another element of Bauer’s overall critique is that the President is not listening to his legal advisers who have told the President (or who should have told the President) to shut up. Instead, the President refuses to listen to his advisers, and he keeps communicating with the public, i.e., telling the public precisely what he thinks about the issues of the day. Has Bauer considered the possibility that a good segment of the voting public likes the President’s honesty (even if they also disagree with his substantive views)? Perhaps this is why Trump won, and why HRC lost?

OK. So much for Trump. Bauer thinks Trump has the wrong opinions about things that happened in the past and in regard to hypothetical events. Trump has the wrong resentments and the wrong doubts. So what should right-thinking people believe? Now Bauer tells us: we ought “to appreciate, or be moved by, the conception of [Department of Justice] professionalism . . . independence and impartiality.” Bauer cannot be telling us that Trump ought to appreciate these values as things in themselves. Rather, it only makes sense for Bauer to criticize Trump on these grounds if in fact the DOJ is professional, independent, and impartial. I suppose it might be, and if Bauer ended here we could agree or not with Bauer’s view here based on what we know about the DOJ’s past and current behavior. But Bauer does not end here. Rather, Bauer concludes with: “Trump’s continued emphasis on the supreme importance to him of loyal subordinates in the ranks of law enforcement will not serve him well as prosecutors form a picture of him in evaluating evidence of obstruction.” Now isn’t this the most extraordinary admission? Isn’t Bauer telling us that if you have the wrong opinions, if you have the wrong resentments, and the wrong doubts, and if you have the wrong (I kid you not) emphasis, then the likelihood of the DOJ’s prosecuting you will meaningfully increase? And if that is the measure of DOJ professionalism, independence, and impartiality, if those virtues are not to be found when the DOJ exercises its prosecutorial discretion, then isn’t Trump 100% correct in demanding loyalty?

Bauer describes a prosecutorial regime where free speech is not protected or even valued. His criticism of Trump is that Trump will not kowtow to the bullies and to his legal advisers (i.e., people like Bauer) who urge him to submit to the bullying. Does it even dawn on Bauer that maybe, just maybe, Trump ought to be praised for trying to reclaim America’s free speech tradition? Is it possible that thousands of voters, sensing the decline of our free speech tradition, voted for Trump for precisely this reason? And perhaps that is why Trump won several close states, if not the election, and why HRC lost?

This is a dangerous and divisive game that Bauer and the President’s opponents are playing. Bauer finds it perfectly normal, if not archetypically professional, for the prosecutorial arm of the government to mobilize itself against a citizen (here, the President!) for nothing more than expressing opinions about past public political events and for having the wrong resentments, the wrong doubts, and the wrong emphasis. Again: the wrong emphasis! Bauer’s sad comment on our ‘justice’ system and professionals fills me with “foreboding.” “That tragic and intractable [totalitarian] phenomenon,” which we see with horror in former Soviet Bloc countries, Third World dictatorships and, more recently, among the most politically correct members of the European project, “is coming upon us” in the United States “by our own volition and our own neglect.” It will be of European dimensions before we realize the full scope of the transformation in American free speech mores and law. “Indeed, [the transformation] has all but come.”[2]

Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and Ours, New Reform Club (July 23, 2017, 10:36 AM), <http://tinyurl.com/y7ahouep>.

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[1] Bob Bauer, Considering Trump’s Legal Position (and Problems) After the New York Times Interview, Lawfare (July 20, 2017, 11:30 AM), <http://tinyurl.com/yax56hg9> (emphasis added).

[2] Address to the Annual General Meeting of the West Midlands Area Conservative Political Centre (Birmingham, Midland Hotel April 20, 1968). My blog post’s last paragraph has drawn freely from the language and imagery used in the Birmingham speech, although that speech was on an entirely different subject matter.

#MoreSocialThanScience

#TuitionIsTheft pic.twitter.com/IGOZSidFE3

— Tᴏᴍ Vᴀɴ Dʏᴋᴇ (@DykeVanTom) July 20, 2017

Some Modern Academic Scholarship Posted on SSRN

Donald O. Mayer & Adam J. Sulkowski, Emoluments and Implications from Conflict of Interest Laws and Private Sector Fiduciary Duty (July 19, 2017), https://ssrn.com/abstract=3003141.

p.3 n.22: “Self-love seems to be central to the personality of the 45th President of the United States.” Modern academic scholarship.

p.6: “When President Obama was awarded the Nobel Prize for Peace, he sought and received permission from Congress.” How is it possible to write on the Foreign Emoluments Clause and make a claim like this absent any citation?

p.20: “The notion that the [Foreign] Emoluments Clause was directed only toward quid pro quo exchanges does not withstand historical scrutiny.” No citation is provided indicating that anyone has suggested that the Foreign Emoluments Clause was limited to quid pro quo exchanges. Quite the opposite: The Foreign Emoluments Clause extends to “present[s];” so no exchange of any sort is necessary to implicate the clause.

p.21: “It’s possible that a key segment of voters in the U.S. 2016 electorate confused power and wealth with virtue and talent.” No sources. This sort of contempt for ordinary voters is what drives people to vote for Trump. Keep writing this way: You will get more Trump.

But truly the best part of this article, is its willingness to engage contrary authority.

Seth Barrett Tillman, Some Modern Academic Scholarship Posted on SSRN, New Reform Club (July 20, 2017, 12:42 PM), http://tinyurl.com/yd9f9ygx. 

Conference: The Foreign Emoluments Clause: From President Washington to President Trump

Seth Barrett Tillman, Conference: The Foreign Emoluments Clause: From President Washington to President Trump, New Reform Club (July 14, 2017, 1:56 PM), http://tinyurl.com/y7fzeunk

New York Times Opinion Editorial: Yes, Trump Can Accept Gifts

Josh Blackman & Seth Barrett Tillman, Opinion Editorial, Yes, Trump Can Accept Gifts, NY Times (July 13, 2017), http://tinyurl.com/ycqa26bs

Also posted at: http://ssrn.com/abstract=2999976

Tweet: 

https://twitter.com/SethBTillman/status/885533541924315137

An Extract from NY Times Opinion Editorial: 

On Friday, President Trump will celebrate Bastille Day in Paris to reaffirm“America’s strong ties of friendship with France.” More than two centuries ago, the storming of the Bastille was commemorated when the Marquis de Lafayette, then a French government official, gave President George Washington the main key to the demolished fortress — a gift Washington kept without asking for Congress’s permission. Indeed, other early presidents followed this tradition of accepting gifts from other nations without ever seeking congressional consent.

This practice is one that Mr. Trump’s legal adversaries ignore as they attempt to redefine the meaning of the Constitution’s Foreign Emoluments Clause. Federal courts should not allow them to create a new legal restriction on the president’s conduct.

.... 

The Constitution offers several remedies for a president’s improper foreign entanglements. Congress can regulate, by statute, the receipt of presents from other nations or require the president to make disclosures about his foreign commercial arrangements. Of course, as a last resort, the president can be impeached and removed from office for bribery. However, the Foreign Emoluments Clause can provide no redress in relation to a president’s foreign entanglements either in the courts or through the impeachment process, for the simple reason that the clause does not cover the president or any other elected officials.

Seth Barrett Tillman, New York Times Opinion Editorial: Yes, Trump Can Accept Gifts, New Reform Club (July 13, 2017), http://tinyurl.com/yba5zatc

A Second Response To Jane Chong

Chong: “At the heart of the emoluments controversy is President Trump’s refusal to liquidate his business holdings. . . . And just as critically, are future presidents entitled to pull a Trump—or does the Constitution dictate that they, like Jimmy Carter, must sell their family peanut farms as a condition of taking office?” (emphasis added). Chong: “[Carter] gave the farm up, apparently without serious protest.”

NY Times: “When Jimmy Carter became president, he put his relatively simple businesses—a peanut farm and warehouse—into a trust . . . .” (emphasis added)

Chong: “No Article III court has ever rendered an opinion on how either Emoluments Clause should be interpreted . . . .” (emphasis added)

Article III Courts: U.S. ex rel. New v. Rumsfeld, 448 F.3d 403 (D.C. Cir. 2006) (opining on the Foreign Emoluments Clause); Griffin v. U.S., 935 F. Supp. 1, 6 (D.D.C. 1995) (opining on the Domestic Emoluments Clause); see also Ward v. U.S., 1 Cl. Ct. 46 (1982) (opining on the Foreign Emoluments Clause).

Chong: “[T]he [Office of Legal Counsel] opinions also suggest that presidents may in limited cases accept certain fixed benefits—as I will explain, these might be pensions from the U.S. state that used to employ them or money damages from a foreign country against which, in a past life, they successfully won a judgment. The key is that those benefits cannot be subject to foreign or domestic government manipulation or adjustment in connection with the presidential office.” (emphasis added)

Article III Court: Griffin v. U.S., 935 F. Supp. 1, 6 (D.D.C. 1995) (“It is clear that history, custom and usage support the theory that proceeds derived from the sale of Mr. Nixon’s presidential papers do not constitute an emolument. As the Court of Appeals noted, Presidents ‘have been able to use real leverage in negotiating with respect to the disposition of presidential papers [created while in office using government property] to extract from the United States “fancy sums” in the form of lucrative library deals, while maintaining essential control over the materials.’ 298 U.S. App. D.C. at 259, 978 F.2d at 1279. Indeed, Presidents have used their ‘leverage’ to extract ‘lucrative library deals’ while they were still in office. Similarly, Congress has authorized the purchase of presidential materials, and has authorized purchase by the Library of Congress.” (emphasis added)). The key word here is “deal,” which indicates that consideration is negotiated, and not fixed.

Chong: “For example, so far as we know, Jimmy Carter did not demand an OLC opinion on whether he could keep his peanut farm; certainly he did not deploy the Justice Department to fight in court for it.” (emphasis added)

Tillman: CREW made a tactical choice to sue Trump in an “official capacity” suit. If the DOJ was “deployed,” it was because of Plaintiffs, not Trump. See, e.g., Bob Bauer, The Emoluments Lawsuit: The United States’ Position and the Defense of President Trump, More Soft Money Hard Law (May 4, 2017), http://tinyurl.com/yc7nut3n. 

Seth

Seth Barrett Tillman, A Second Response To Jane Chong, New Reform Club (July 11, 2017, 3:59 PM), http://tinyurl.com/y8wspn56 

A Response To Jane Chong’s Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?

Seth Barrett Tillman**

In a recent and well received Lawfare post, Jane Chong wrote:

A threshold issue before turning to the OLC literature is the confusion created by cherry-picking historical materials without consideration of their factual context. For example, in its motion to dismiss, the Justice Department followed the lead of some scholars in pulling some Supreme Court language that suggests the term “emoluments” applies only to salary and other duty-related benefits. Most notably, in Hoyt v. United States, 51 U.S. 109 (1850), the Court defines emoluments as “every species of compensation or pecuniary profit derived for a discharge of the duties of office” (emphasis added).

But in Hoyt [v. United States], the Supreme Court was specifically asked to decide what constitutes an “emolument of office” per a statute governing Treasury Department collectors in their official capacity; the case did not require the Court to consider or rule on the existence of emoluments of other kinds.[1]

Chong’s language here is a little difficult to follow. In Hoyt, Plaintiff (the United States, i.e., the Treasury) brought suit in the Circuit Court for the Southern District of New York[2] against the Defendant (the former collector of the port of New York, i.e., Hoyt), to recover a balance claimed in settlement of his accounts. The United States and Collector disputed the scope of Hoyt’s fees, commissions, expenses, offsets, etc.

The “emolument of office” language to which Chong refers appears in two jury instructions submitted by the Plaintiff to the trial court. See Instructions VI[4] and VI[6][2]. Hoyt, 51 U.S. at 119. These instructions were part of a set of 6 instructions submitted by the Plaintiff, along with 18 proposed instructions submitted by the Defendant. What did the trial court do? The trial court rejected Defendant’s proposed instructions, and charged the jury under Plaintiff’s proposed instructions I through V. Id. at 119 & 121. The trial court never used Instructions VI[4] and VI[6][2]: which use the language cited by Chong. The Plaintiff prevailed at trial, and the Defendant appealed. On appeal to the Supreme Court, the Defendant argued that the trial court erred: by rejecting Defendant’s proposed jury instructions and also erred by charging the jury with Plaintiff’s instructions I through V. Id. at 126. The Plaintiff defended the jury instructions as given. Id. at 128–29. What was the upshot? Although Defendant sought a jury instruction using “emolument of office” language, that is, Instruction VI, the trial court rejected that instruction, and on appeal to the Supreme Court, neither party argued that the failure to use Instruction VI was error. So when Chong argues that the Hoyt Court was “specifically asked to decide what constitutes an ‘emolument of office,’” she was wrong. No one asked.

Once this error is noticed, the rest of Chong’s analysis falls apart. Chong can point to other language in Hoyt using “emolument of office.” It is there, and she takes it to mean that “emolument” can be used in a context unrelated to “office” and other employment-like relationships. But she offers nothing akin to proof for that bold claim. It is conceivable that the Hoyt Court added “of office” language to “emolument” because it believed that there were “emoluments” which were unrelated to office, but it is also possible that the Hoyt Court thought all “emoluments” were tied to office-and-employment-type relationships. Without her initial misreading of Hoyt or any other substantial reason to believe the former, the rest of her analysis makes no sense.

It is not as if the meaning of “emoluments” has not come up before. Chong only turns to OLC memoranda as guidance because she lacks anything akin to a judicial decision from the U.S., any state or territory, and any foreign court in the common law world—any decision asserting that you can have an emolument unrelated to discharging the duties of office (or an employment-type relationship). That is telling.[3] And it is not as if commentators have not spoken to this question: the meaning of “emoluments.” They have done that long before Trump. In 1850, the Hoyt Court tied “emoluments” to employment-type relationships, and it did that when interpreting a 1799 statute (as subsequently amended).[4] A 1799 statute’s use of “emoluments” is not obviously so different from how the same word was used in the Constitution in 1789. More recently, Professor Kerridge explained: “[W]hile it is perfectly possible to argue that a payment is a profit but that it is not a profit from an employment, it makes no sense to argue that something is an emolument but that it is not from an employment. All emoluments must be from employments,”[5] and “All emoluments are from employments, or from the equivalent of employments, that is the essence of emoluments.”[6]

Seth

Seth Barrett Tillman, A Response To Jane Chong’s Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?, New Reform Club (July 10, 2017, 6:29 PM), http://tinyurl.com/y9jb6ve5

---

** Seth Barrett Tillman is a member of the faculty in the Maynooth University Department of Law, Ireland. Tillman blogs at New Reform Club and tweets at @sethbtillman. He filed an amicus in the ongoing Foreign Emoluments Clause-related litigation in New York. See Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America (“CREW v. Trump”), Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.) (filed by Professor Josh Blackman & Robert W. Ray, Esq.), Doc. No. 37, 2017 WL 2692500, https://ssrn.com/abstract=2985843.

[1] Jane Chong, Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?, Lawfare (July 1, 2017, 3:00 PM), http://tinyurl.com/yaw6wyex (bold added).

[2] The Circuit Court acted as a trial court. Coincidentally, this is the same federal district in which CREW v. Trump is being litigated.

[3] See, e.g., Re Legislative Council Election, 22nd Sept. 1988, [1989] 2 H.K.L.R. 194, 217, bit.ly/2syBpZX (explaining that “emoluments of office [are that which are] received by a person who is an employee from his employer and as a payment arising out of or in connection with duties performed in the course of that employment” (emphasis added)).

[4] If one were to examine statutes contemporaneous with 1789, it becomes fairly clear that emoluments are one thing and an officeholder’s private commercial business transactions are an entirely different thing. Compare An Act for Establishing Certain Regulations for the Better Management of the Affairs of the East India Company, 13 Geo. III c. 63, § 21 (1773) (setting the Governor-General’s salary), with id. § 22 (denying him any other “Emoluments”), with id. § 23 (forbidding the Governor-General from being “concerned in any Transaction by way of Traffick”). See generally An Act to establish the Treasury Department, ch. 12, § 8, 1 Stat. 65, 67 (1789).

[5] Roger Kerridge, Emoluments “from” an Office or Employment, 9 British Tax Review 315, 318 (1990).

[6] Roger Kerridge, The Taxation of Emoluments from Offices and Employments, 108(3) Law Quarterly Review 433, 455 (July 1992) (emphasis added). 

On Western Civ and the DWMs

With Pavlovian predictability, the left has gone apespit over President Trump's recent praise of "Western Civilization." What is Western Civilization, they ask, followed with the usual litany of deplorable racism, sexism, this-ism and that-ism. Dead White Male-ism.

Philosopher John S. Searle took this on in 1990, with the now-[in]famous Storm over the University.

One curious feature of the entire debate about what is "hegemonic," "patriarchal," or "exclusionary" is that it is largely about the study of literature. No one seems to complain that the great ideas in physics, mathematics, chemistry, and biology, for example, also come in large part from dead white European males. Historians of science have been showing how talented women were discouraged throughout modern history from pursuing scientific careers. But I have not heard any complaints from physics departments that the ideas of Newton, Einstein, Rutherford, Bohr; Schrödinger, etc., were deficient because of the scientists' origins or gender. Even in history of philosophy courses—as opposed to general education courses—there is little or no objection to the fact that the great philosophers taught in these courses are mostly white Western males, from Socrates, Plato and Aristotle through Frege, Russell, and Wittgenstein. 

A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled?

Christopher Fonzone & Joshua A. Geltzer, Can President Trump Just Leave Key Executive Branch Offices Unfilled?, Lawfare (July 5, 2017, 11:40 AM), http://tinyurl.com/yb8aq5dm.

A Response:

In a recent post on Lawfare, Christopher Fonzone and Joshua A. Geltzer ask the question: “Is the persistent and deliberate failure to identify candidates [for appointed federal positions] not merely a sign of inept governance and deadlocked politics but also, at least in certain cases, a legal failing as well?” Their answer is basically: yes. Their position is worth pondering. I do think several of their arguments do not work, and several others are not well supported.

The Appointments Clause. Fonzone & Geltzer quote the Appointments Clause. See U.S. Const. art. II, § 2, cl. 2. They note that this Clause uses shall-language in regard to presidential appointments. Such language is frequently understood to connote a mandatory duty. But here, they don’t make that argument, which was wise, that the Appointments Clause imposes any mandatory duty on the President. Instead, they argue that certain federal statutes give the President the power to make appointments to federal offices, and those statutes use mandatory shall-language, rather than discretionary may-language. They reason that under such statutes the President has a mandatory duty to make the called-for appointments.

Senate Consent. The President can only make appointments to Supreme Court positions and certain other federal positions if the President has the advice and consent of the Senate. Sometimes Senate consent is required as a constitutional matter, and sometimes Senate consent is required as a statutory matter, and sometimes, a position requires Senate consent under the Constitution and as a statutory matter. In regard to all these positions, positions where Senate consent is required, my view is that the Senate cannot impose a mandatory duty on the President to make an appointment. There are two primary reasons for this. First, the President cannot make any such appointments absent Senate consent, and the Senate has no duty even to consider the President’s nomination. See Jonathan H. Adler, The Senate Has No Constitutional Obligation to Consider Nominees, 24 George Mason L. Rev. 15 (2016) (citing Tillman extensively). To put it another way: “Responsibility in order to be reasonable must be limited to objects within the power of the responsible party . . . .” The Federalist No. 63, at 338 (James Madison) (J.R. Pole ed., 2005); Enoch Powell, M.P. (for South Down, N.I.), Christianity and the Curse of Cain, in Wrestling with the Angel 13 (1977) (“No one can be responsible for what he does not control.”); see also C.H. McIlwain, Constitutionalism and the Changing World 282 (1939) (same). The second reason is that in Marbury v. Madison, the Supreme Court described the 3-stage process of presidential nomination, Senate advice and consent, and presidential appointment. Justice Marshall did not characterize the President’s role in this process merely as “discretionary,” and if he had, such discretion-related language might extend no further than to the choice of nominee. Rather, the Marshall Court described the President’s role as one which was “voluntary.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–56 (1803) (Marshall, C.J., for a unanimous Court). Of course, Fonzone & Geltzer might respond: So what: John Marshall was just speaking about the President’s duty under the Appointments Clause, not under a federal statute. But that response is insufficient, Fonzone & Geltzer must show how a federal statute could turn a voluntary presidential power into a mandatory duty. Does anyone really believe Congress can do that? The President, under the Constitution, can sign bills, veto them, or leave them unsigned. Could Congress mandate that the President must sign or veto all bills? Could Congress mandate that the President sign all bills? I think not. So how could Congress mandate that the President must act where (according to the Court in 1803) he has discretion not to act at all?

Presidential Appointments to Inferior Offices and Positions Where Congress Has Waived Senate Advice and Consent. In regard to these positions, the President has the power under a statutory provision to make an appointment without Senate advice and consent. Here, the responsibility-requires-power argument does not apply. And Marbury, which spoke to the 3-stage appointment process involving Senate consent, is not precisely on-point. One might argue that the Marshall Court’s “voluntary” characterization which applies to offices subject to the 3-stage process should apply equally to positions directly subject to presidential appointment. But the law here is undeveloped. Some have suggested that Congress has greater power in regard to these positions. Cf. Hanah Metchis Volokh, The Two Appointments Clauses, 10 U. Pa. J. Const. L. 745 (2008). One consequence of that greater power might be that Congress has the power to impose a mandatory duty on the President to fill the position. This takes us to a wider question: Can Congress directly regulate the President qua President in regard to how he carries out his official duties? When I was a child, all (or nearly all) would have said: “Of course, yes Congress has such a power!” But after Zivotofsky, we cannot be sure what Presidential powers can be regulated and limited by statute.

Congressional Intent. That takes us to (as I see it) the weakest part of Fonzone and Geltzer’s argument. Their position is that Congress’s statutes impose a mandatory duty on the President as indicated by Congress’s using shall-language, which is generally mandatory. They cite a CRS report which collects authority on this point. But as the report itself indicates, concluding that the use of shall-language imposes a mandatory duty is “context” dependent. See CRS Report at 8–9, https://fas.org/sgp/crs/misc/97-589.pdf. Fonzone and Geltzer never examine the actual language and context of even one such appointments-related statute. But there is a larger problem with their argument. Most of the case law, if not all that case law for all I know, which asserts that shall-language in a modern statute imposes a mandatory duty, relates to agency action and subordinate executive officers. Fonzone and Geltzer do not point to even one such case where a federal court concluded that a statute imposed a mandatory duty on the President based merely on the statute’s shall-language. Perhaps such a case exists, but Fonzone and Geltzer do not point it out, or explain if its holding relates to the appointments context. The better view, I think, is that shall-language is insufficient to communicate that Congress intended to impose a mandatory duty on the President. Rather, to do so, the statute must expressly name the President, set a deadline, and create an express sanction for failure to adhere to the deadline. Cf. id. at 40. Only then can we know that Congress really means to impose a mandatory duty on the President, and only then will a President have a sufficient incentive to use his veto should Congress’s statute be overly burdensome.

Take Care Clause. Lastly, Fonzone and Geltzer suggest that if Congress can lawfully impose a mandatory duty on the President to make appointments, the President’s failure to make such an appointment is a violation of the Take Care Clause. The Take Care Clause is a bit of an enigma. So it is difficult to say anyone is entirely right or wrong. I would say this: If Congress has lawfully imposed a mandatory duty on the President to make an appointment, then his failure to make such an appointment is unlawful and a violation of his Article VI oath (or affirmation). But such a failure is not a violation of the Take Care Clause. The Take Care Clause imposes a duty on the President to supervise Executive Branch subordinates (and state officers carrying out federal duties). The President’s duty under the Take Care Clause is like that of a traditional fiduciary in private law. The President must not tell his subordinates to break the law; he must act in some fashion if he should discover that his subordinates have acted unlawfully; and he must put in place mechanisms to discover unlawful action by his subordinates and meaningfully act when those mechanisms reveal unlawful conduct. But the Take Care Clause does not apply to the President’s own duties in relation to his own conduct (or inaction). As Chief Justice Taney explained:

[The President] is not authorized to execute [the law] himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution [by others], as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution.

Ex Parte Merryman, 17 F. Cas. 144, 149 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.) (emphasis added); 4 (pt. 1) A Collection of In Chambers Opinions 1400 (Cynthia Rapp & Ross E. Davies comps., 2004), http://tinyurl.com/judtw8q. Obviously, not all agree on this point, in part because the Take Care Clause was, is, and is likely to remain enigmatic. 

Seth

Seth Barrett Tillman, A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled?, New Reform Club (July 7, 2016, 3:00 PM), http://tinyurl.com/ycczek9a. 

Frankfurter Allgemeine on the Emoluments Clause case against Trump

Eine besondere Rechtsposition in dieser Auseinandersetzung nimmt ein Spezialist für die Emoluments-Klauseln in der Verfassung ein. Der in Irland forschende Amerikaner und Harvard-Absolvent Seth Barrett Tillman argumentiert aus historischen Dokumenten heraus, dass Emoluments-Klauseln gar nicht für den Präsidenten gälten, sondern nur für ungewählte Beamte. Das gibt die Rechtsauffassung wieder, die sich Trump selbst zu eigen macht. Jurist Tribe allerdings hält Tillmans These für „albern“. Noch nicht einmal Trumps Verteidiger hätten sie übernommen. Sie ist Gegenstand eines sogenannten „Amicus“-Briefs von Tillman, der beim zuständigen Gericht in New York hinterlegt wurde. Tillman sagt mit seiner Analyse nicht, dass Trump keine problematischen Interessenskonflikte hätte. Er glaubt nur, dass diese nicht über den Weg der Verfassungsklage aus dem Weg geräumt werden könnten. Eine von Barack Obama ins Amt gesetzte Richterin in New York hat nun das Wort. 

Translated as: 

A special legal position in this dispute is taken by a specialist for the Emoluments Clauses in the Constitution. The American researcher and Harvard graduate Seth Barrett Tillman, who is researching in Ireland, argues from historical documents that Emoluments Clauses do not apply to the President, but only to non-elected officials. This is reflected in the legal concept, which Trump himself adopts. Jurist Tribe, however, considers Tillman's thesis to be "silly". These arguments had not even been made by Trumps' [Department of Justice] defenders. It is the subject of a so-called "Amicus" letter by Tillman, which was deposited with the competent court in New York. Tillman does not say with his analysis that Trump has no problematic conflicts of interest. He only believes that these can not be cleared out of the way of the constitutional process. A judge appointed by Barack Obama, in office in New York, now has the floor.

Verstößt Trump gegen die amerikanische Verfassung?, Frankfurter Allgemeine (July 3, 2017), http://plus.faz.net/evr-editions/2017-07-03/46043/365208.html.

Seth Barrett Tillman, Frankfurter Allgemeine on the Emoluments Clause case against Trump, New Reform Club (July 4, 2017, 12:50 AM), http://tinyurl.com/tqgwfbv