The Better Way To Think About

 

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[1] 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. 

[1] 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>;