Most people simply assume that the “classes of activity” position was a right-wing argument manufactured in 2009 in response to the Affordable Care Act. This is not the case. As I recount in Unprecedented, this idea in fact germinated in Nathaniel Stewart’s 2004 student note in the Case Western Law Review. Stewart, along with Todd Gaziano (Heritage) and Randy Barnett (Georgetown) co-authored the seminal white paper that formed the basis to the constitutional challenge to the ACA. That white paper however, was not written on a blank slate; it depended on Stewart’s outside-the-box thinking five years earlier–long before the issue was relevant.
I have begun to sense a similarity between the early days of the Obamacare and the Emoluments Clause litigation. While most scholars never even considered the Foreign Emoluments Clause, and who holds “Office . . . under the United States” before November 2016, Seth Barrett Tillman has been studying these areas for nearly a decade. Long before Donald Trump was President, he wrote consistently that the language used in the Foreign Emoluments Clause does not apply to elected positions, like the President or members of Congress. He wrote that President Barrack Obama could keep his Senate seat, and a Vice President Ryan could keep his House seat. The most cursory inspection of Seth’s record demonstrates that this is not an ideological or partisan project. He has been a consistent scholar on this point for years. Further, Seth persuaded me on that question some time ago, long before President Trump was even a figment of my imagination. That is why I have devoted considerable time and effort in this litigation. Working closely with Seth has been one of the most rewarding experiences of my career.
This brief has nothing to do with Donald Trump or his business interests. Rather, as a friend of the court, we seek to provide a stream of authority about the text and history of the Constitution that neither of the parties have advanced. (Indeed, one side has put forward mischaracterizations of documents that undercut their position).
There is another analogy to the ACA litigation that is worth stressing: by simply dismissing an argument out of hand, and not providing a reasoned response, you allow that argument to gain steam. The professors who dismissed Randy Barnett, Jonathan Adler, Ilya Somin, and others as partisans blundered. Eventually, the media picked up on the fact that there was a there there. Scholars on the left charged the media–in particular Adam Liptak of the Times–with creating a “false equivalency.”
Eventually, reality sets in. And today, it began to set in.