Day: January 11, 2017

The Originalist Analysis about the Emoluments Clause from President-Elect Trump’s Legal Team

Earlier today I carped that the discussion of the emoluments clause during the Trump press conference was not nearly thorough enough, and wrote that a formal legal opinion by constitutional lawyers should be released. This afternoon, the law firm of Morgan Lewis released just such a letter. It is signed by Sheri Dillon (who spoke at the press conference), Fred F. Fielding (who served as WH Counsel for Reagan and Bush 43), Allyson N. Ho (who co-chairs the firm’s appellate practice, and clerked for Justice O’Connor), Michael E. Kenneally (associate who clerked for Scalia/Alito), William F. Nelson (tax partner), and Judd Stone (associate who also clerked for Scalia). In this post I’ll walk through the largely-originalist analysis.

First, the letter states that the President is bound by the Foreign Emoluments clause. (Sorry, Seth).

On assuming office, the President-Elect will be bound by—and will scrupulously abide by—his obligations under the Constitution. That includes the obligations created by the constitutional provision that these commentators highlight, the Foreign Emoluments Clause.

Second, the letter counters that regular business transactions involving Trump’s hotels would not run afoul of the clause.

But these commentators are wrong to suggest that business in the ordinary course at any of the Trump International Hotels, or at any of the President-Elect’s businesses, risks violating this obligation.

Third, the letter advances an originalist theory to understand the meaning of the clause.

The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text.8 Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a “present, Emolument, Office, or Title.”

8 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 78-92 (2012); Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 862-64 (1989).

However, for the analysis of “present,” “office,” and “title”–rather than citing contemporary sources–relies on the most recent edition of Black’s law dictionary. This approach is not fatal, but there should be some analysis stating that the meaning of these provisions have been consistent over the past two centuries. (I suspect they have).

So long as foreign governments pay fair-market-value prices, their business is not a “present” because they are receiving fair value as a part of the exchange.9 It clearly is not an “Office”10 or a “Title”11 from that government. These commentators therefore must rest their argument on the final category of prohibited benefit: “Emolument.”

The letter further states that the original understanding of “emolument” today is the same as during the founding era..

As shown below, an emolument was widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office—then, as today, an “emolument” in legal usage was a payment or other benefit received as a consequence of discharging the duties of an office. Emoluments did not encompass all payments of any kind from any source, and would not have included revenues from providing standard hotel services to guests, as these services do not amount to the performance of an office, and therefore do not occur as a consequence of discharging the duties of an office.

The closest the letter comes to addressing the original understanding of the clause in 1789 are citations to the Federalist (contemporaneous), along with citations to later opinions of the Attorney General.

Other legal experts early in the Nation’s history used the word the same way, including Alexander Hamilton and James Madison in The Federalist Papers12 and Attorneys General in numerous formal opinions.13

12  See, e.g., THE FEDERALIST 2, 177, 243, 268, 340, 379-80 (G. Carey & J. McClellan eds., 2001).
13  E.g., Salaries of Officers of Arkansas Territory, 1 Op. Att’y Gen. 310, 310 (1819); Salaries to Ministers and Consuls, 2 Op. Att’y Gen. 470, 471 (1831); Marshal of Florida, 6 Op. Att’y Gen. 409, 410 (1854).

The letter also cites the nearly-ratified “Titles of Nobility” Amendment to the Constitution from 1810:

Supporting this understanding is parallel language in the nearly adopted Titles of Nobility Amendment to the Constitution. In 1810, Congress voted by overwhelming margins to extend the Foreign Emoluments Clause to all citizens, not just federal officials.14 The proposed amendment would have prohibited private citizens’ acceptance of “any present, pension, office, or emolument, of any kind whatever, from any Emperor, King, Prince, or foreign Power,” stripping violators of their citizenship and barring them from state or federal office.15 The amendment came within two states of ratification—indeed, because of a publishing mistake, several generations believed it was part of the Constitution.16

14 20 ANNALS OF CONGRESS 671, 2050-51 (1853).

15  Id. at 671.
16  See Gideon M. Hart, The “Original” Thirteenth Amendment: The Misunderstood Titles of Nobility Amendment, 94 MARQ. L. REV. 311, 313-15 (2010); Curt E. Conklin, The Case of the Phantom Thirteenth Amendment: A Historical and Bibliographic Nightmare, 88 LAW LIBR. J. 121, 126 (1996) (“[T]hree or more generations of Americans grew up assuming that the amendment was law.”).

Using this later-in-time provision, the letter contends that there was no argument that the Amendment would have restricted overseas business practices of citizens.

Yet there is no evidence anyone at the time thought the proposed amendment restricted citizens’ ability to engage in commerce with foreign nations, their governments, their representatives, or their instrumentalities. That suggests that the public did not understand the prohibition on accepting foreign emoluments to prohibit commerce with foreign states or their representatives through fair-market-value exchanges—and, by implication, that the Foreign Emoluments Clause does not reach these transactions. Given the importance of foreign trade in the Nation’s early decades, the absence of any indication that the proposed amendment would have had this effect further supports understanding “emolument” not to encompass fair-market-value transactions—consistent with the term’s other uses in the Constitution, its common legal use at the Founding, and the Supreme Court’s explanation of the term.

Rob Natelson has written that there were six variations of the phrase “emoluments” from the Continental and Confederation Congresses, as well as records of the Constitutional Convention:

The first two definitions are broad enough to include outside commercial transactions. The phrase in the Foreign Emoluments Subclause “of any kind whatever” suggests that the term should be read this way.

The other four variations are all tied to compensation for holding a particular office. Presumably they would include a salary from the French government to an American official for holding his office. But they would exclude payments made to President Washington if the British government happened to buy some of Mount Vernon’s exported tobacco, and they would exclude fair market rents paid at the Trump Tower.

Arguing for one of the definitions tied to office is the fact that the Foreign Emoluments Subclause uses the word as one item in a series. Pointing in the same direction are the Constitution’s other two uses of “emoluments,” both of which are directed at compensation for holding office.

*          “Emolument” could mean any advantage or benefit whatsoever, as in “they should be permitted . . . to share in the blessings of peace, and the emoluments of victory and conquest.” This was the broadest usage, and the common dictionary definition.

*          “Emolument” could mean gain that was specifically pecuniary, including gain attached to a particular office and “private emolument”—that is, money from outside sources, such as trade: Examples: “that honor and emolument should naturally follow the fortune of those who have steered the vessel in the storm and brought her safely to port” and “The emoluments of the trade are not a compensation for the expense of donations.”

*          It could mean the compensation—pay and fringe benefits—attached to a particular office, as in “such as his rank entitles him to . . . and without pay or any other emolument whatever.”

*          It could mean the fringe benefits attached to a specific office but not the pay, as in “that his emoluments and one half of his pay be suspended” or “his request for pay cannot be complied with, and that all the emoluments he derives from the United States are to cease” or “he should be allowed the emoluments but not the pay.”

*          It might include items such as living supplies, extra compensation, and reimbursement for expenses, as in “The value of the additional emoluments of forage and subsistence would amount at the rate of thirty six dollars per month . . .”

*          Or it could exclude one or more of these items, as in “the Post-master general make such an allowance to the postmaster  . . . in addition to the emoluments of his office, as may be a reasonable compensation for his extra services” or “[Pennsylvania] President Franklin moved . . . that the executive should receive no salary, stipend or emolument for the devotion of his time to the public services, but that his expenses should be paid.”

There is a lot more work to be done to ascertain the meaning of “emoluments” in 1789.

Fourth, the letter attempts to use a structural analysis, looking to other provisions in the Constitution, to provide meaning to the foreign emoluments clause. Specifically, along similar lines of Natelson’s analysis, the fact that the other two clauses that cite “emoluments” refer to payment associated with an office.

The Constitution’s text shows that the word had this more limited meaning. Apart from the Foreign Emoluments Clause, the term emolument appears twice more in the Constitution, and both times refers to compensation associated with an office. First, the Incompatibility Clause bars congressmen from assuming “any civil Office . . . the Emoluments whereof shall have been encreased during” the congressman’s tenure. U.S. CONST. art. I, § 6, cl. 2. Second, the Compensation Clause, which guarantees the President’s compensation during his term of office, prohibits him from “receiv[ing] within that Period any other Emolument from the United States, or any of them.” Id. art. II, § 7, cl. 7.

Fifth, the letter contends that construing “emoluments” to mean any benefit would yield absurd results (citing the work of Andy Grewal).

There are further problems with understanding “emoluments” to include any kind of benefit an individual might receive. For one thing, it would have been redundant to list “present” and “Emolument” in the Clause separately, because any present would already qualify as a benefit. For another thing, it would lead to absurd results. For example, if the Constitution’s Article II prohibition on the President receiving “any other Emolument from the United States, or any of them” refers to any benefit, including fair- market-value transactions, then the President violates the Constitution by purchasing Treasury bonds or receiving interest on a retirement account from federal or State bonds.17 That cannot be correct.

17  See Andy Grewal, Should Congress Impeach Obama for His Emoluments Clause Violations?, YALE J. ON REG.: NOTICE & COMMENT (Dec. 13, 2016),

Sixth, the letter offers a rejoinder to the original-intent arguments about the clause’s purpose (such as Zephyr Teachout’s anti-corruption construction), rather than an original-meaning analysis.

Commentators who argue for a more expansive understanding of the Clause tend to focus not on the Constitution’s original public meaning, but on more subjective conceptions of the policies behind the Clause.

Seventh, the memo seeks to distinguish some “non-judicial opinions” (OLC opinions) that the clause has a broad scope.

Moreover, while non-judicial opinions provided to guide members of the Executive Branch have suggested that the Clause has a broad scope, none of the published opinions has gone so far as to classify fair-market-value transactions as emoluments. And the factual circumstances giving rise to opinions finding Foreign Emoluments Clause violations are different from those here.1

Other opinions, which give the clause a narrow scope, are accepted.

Other opinions fully accord with the Constitution’s original public meaning and are incompatible with the notion that the Constitution prohibits the President-Elect’s businesses from renting hotel rooms to foreign governments at fair-value rates. One opinion, for example, declined to view a pension as an emolument because it was neither a gift nor a salary.19 Another reached a similar conclusion about civil damages paid to a victim of Nazi persecution because they were “not paid as profit, gain, compensation, perquisite, or advantage flowing to him as an incident to possession of an office or as compensation for services rendered.”20 Still another acknowledged that emoluments were “profit[s] arising from office or employment” and generally required services for a foreign government amounting to accepting an office from a foreign state.21

Eighth, the opinion concludes that though there are no violations, to avoid any concerns, the President will simply donate all profits he receives from foreign governments.

In short, the Constitution does not forbid fair-market-value transactions with foreign officials. To put to rest any concerns, however, the President-Elect is announcing he will donate all profits from foreign governments’ patronage of his hotels and similar businesses during his presidential term to the U.S. Treasury. Historically, when federal officers received a gift or emolument from a foreign state, they surrendered possession of it to the federal government,22 though they were permitted to retain amounts necessary to offset their business expenses.23 Although the Constitution does not require the President- Elect to do the same for profits from his businesses’ fair-market-value transactions, he wants to eliminate any distractions by going beyond what the Constitution requires.

Assuming that the business payments are indeed emoluments, I don’t think this workaround cures the problem. As I noted in my post earlier today:

The clause prohibits the “accept[ance]” of emoluments. Avoiding a violation would entail not accepting the emolument in the first place.

The emoluments clause has never been given a definitive resolution by the Supreme Court. In the absence of any precedent, we are presented with a wide-open interpretive question about the original meaning of the Constitution. We don’t get these sorts of debates very often. It is unfortunate that this debate arose in such a pitched, partisan environment.

My hope is that scholars can continue to analyze this fascinating question with clear eyes. To that end, the South Texas Law Review is organizing a symposium on the emoluments clause. We already have tentative acceptances from Seth Barrett Tillman and Andy Grewal, plus a few other invitations are in the work. The symposium will focus on three topics: (1) Does the emoluments clause apply to the President? (2) What is an emolument? (3) Is it justiciable?

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Trump’s Attorneys Opines on Emoluments Clause, Misquotes It

During his press conference, President-Elect Trump called on Sheri Dillon, an attorney at Morgan Lewis, to discuss the Emoluments Clause. (She appears to be a tax lawyer, without any obvious constitutional practice experience).

I’m going to turn to one last topic today that has been of interest lately called emoluments. That’s a word I think we’ve all become familiar with and perhaps had not heard before.

And we’re gonna describe some other actions that President-elect Trump is taking to avoid even the appearance of a conflict.

Emoluments comes from the Constitution. The Constitution says “officials may not accept gifts, titles of nobility, or emoluments from foreign governments with respect to their office, and that no benefit should be derived by holding in office.”

That’s actually not what the Constitution says, and this is an unfortunate paraphrase. Article I, Section 9, Clause 8, provides:

And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The clause does not apply to “officials,” but a “person holding any Office of Profit or Trust.”  It’s unfortunate the official transcript used quotation marks. That is not a quote.

Dillon continues to provide a definition of emolument:

The so-called Emoluments Clause has never been interpreted, however, to apply to fair value exchanges that have absolutely nothing to do with an office holder.

No one would have thought when the Constitution was written that paying your hotel bill was an emolument. Instead, it would have been thought of as a value-for-value exchange; not a gift, not a title, and not an emolument.

But since President-elect Trump has been elected, some people want to define emoluments to cover routine business transactions like paying for hotel rooms. They suggest that the Constitution prohibits the businesses from even arm’s-length transactions that the president-elect has absolutely nothing to do with and isn’t even aware of.

These people are wrong. This is not what the Constitution says. Paying for a hotel room is not a gift or a present and it has nothing to do with an office. It’s not an emolument.

Her analysis seems to assume the Clause applies to the President. (I’ll leave that debate aside for now, other to note that Will Baude recently entered the fray).

The Constitution does not require President-elect Trump to do anything here. But, just like with conflicts of interests, he wants to do more than what the Constitution requires.

So, President-elect Trump has decided, and we are announcing today, that he is going to voluntarily donate all profits from foreign government payments made to his hotel to the United States Treasury. This way, it is the American people who will profit.

Assuming that these payments are indeed prohibited emoluments, transferring the money does not cure the problem. The clause prohibits the “accept[ance]” of emoluments. Avoiding a violation would entail not accepting the emolument in the first place.

Update: Several commenters have told me that I was too harsh, and that Dillon was merely paraphrasing the clause in common language to make it easier for the press to understand.

Sorry, I’m a snoot about these things. If the President-elect is taking a position on the Constitution, he has to be careful. The paraphrase came close to making it difficult to raise a defense that the clause is inapplicable to the President.

This is the kind of significant decision that needs to be accompanied by a legal opinion by constitutional law scholars (like when John McCain retained Larry Tribe and Ted Olson to opine on natural born citizen clause), not offhand comments by a tax attorney.

This caution is especially important because attorneys on the left are champing at the bit to file an emoluments clause challenge.

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President’s Farewell: Constitution “Just a Piece of Parchment,” and “We, the People, Give it Meaning”

During his farewell address, President Obama offered these remarks on the Constitution:

Our Constitution is a remarkable, beautiful gift. But it’s really just a piece of parchment. It has no power on its own. We, the people, give it power. We, the people, give it meaning — with our participation, and with the choices that we make and the alliances that we forge
I think the President completely missed Madison’s reference to “parchment barriers” in Federalist No. 48. Rather than espousing living constitutionalism–the idea that the people “give it meaning” (outside the Article V amendment process)–Madison extolled the separation of powers as the structural bulwarks between the three branches that make the Constitution “beautiful.”

Read (or re-read) what Publius wrote two centuries ago:

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.
On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities.

Alas, under the President’s view, Congress can continue “drawing all power into its impetuous vortex,” but in no sense is the “executive magistracy [so] carefully limited.”

I think what the President was going for is this pearl of wisdom from Learned Hand:

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it… What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.
What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

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Video: “Presidential Maladministration” at 2017 Federalist Society Faculty Conference

On January 5, 2017, I presented my new paper, Presidential Maladminsitration, at the Federalist Society Faculty Conference. This works-in-progress format was limited to seven minutes, and I managed to squeeze it with only 6 minutes and 49 seconds. Here is a recording:

For those interested, here is the abstract. I welcome any comments on this draft paper:

In Presidential Administration, then-Professor Elena Kagan re-envisioned administrative law through the lens of the President’s personal influence on the regulatory state. Rather than grounding Chevron deference on an agency’s “special expertise and experience,” Kagan would “take unapologetic account of the extent of presidential involvement in administrative decisions in determining the level of deference to which they are entitled.” The stronger the President’s fingerprints on the executive action, a practice she praises as “presidential administration,” the more courts should defer.

There is a flipside to Kagan’s theory: four species of high-level influence, which I describe as “presidential maladministration,” are increasingly problematic. First, where an incoming administration reverses a previous administration’s interpretation of statute, simply because a new sheriff is in town, courts should verify if the statute bears such a fluid construction. Second, where an administration discovers a heretofore unknown power in a statute that allows it to confer substantive rights, courts should raise a red flag, especially when the authority exercised was one Congress withheld. Third, where an administration declines to enforce a statute that Congress refuses to repeal, under the guise of prosecutorial discretion, courts should view the action with skepticism. Fourth, where evidence exists that the White House attempted to exert its influence, and intrude into the rulemaking process of independent agencies, courts should revisit the doctrine concerning altered regulatory positions.

As the Federal Register turns the page from Obama to Trump, this article provides a timely analysis of how courts react to unpresidented approaches to maladministration.

I’d also like to provide an AALS-related update. On January 2, I blogged that the American Constitution Society’s “Public Law Workshop” was invitation only. After I blogged about this, I received numerous tweets and emails from ACS-affiliated faculty, criticizing my post. They explained that the format of the event was to allow junior scholars to receive one-on-one, or even two-on-one feedback from senior scholars. (I noted that in the description of my initial post). They told me that the event would not have worked if uninvited attendees were allowed to crash. As a threshold matter, there is indeed no rule requiring AALS events to be open to all attendees. However, this was the only workshop on the schedule that restricted attendance. (There were a few invitation-only receptions or events for Deans). I responded to my ACS interlocutors that their intentions were good, but the optics were bad. I strongly doubt anyone would have crashed had the event been open to the public.

In any event, the Federalist Society’s faculty conference was down the hall from the ACS’s workshop. I took a picture of the closed-door workshop. I dared not knock.

After the workshop, the ACS held a public reception, which I did attend.

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