New on Volokh Conspiracy: The Emoluments Clauses litigation, Part 1: The Constitution’s taxonomy of officers and offices

September 25th, 2017

This week Seth Barrett Tillman and I will be blogging about the Foreign and Presidential Emoluments Clauses. Our first post discusses the Constitution’s taxonomy of “officers” and “offices.”

Here is the introduction:

The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], 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.” In a series of coordinated lawsuits brought under the Foreign Emoluments Clause, plaintiffs contend that because “Defendant Donald J. Trump is the President of the United States of America,” he “thus holds an ‘Office of Profit or Trust’ under the United States.” Their argument certainly has an intuitive appeal: How could the presidency not qualify as an “Office of Profit or Trust under the United States” for purposes of this important anti-corruption provision? But an intuition is not an argument, and it is not evidence. Plaintiffs cannot point to a single judicial decision holding that this language in the Foreign Emoluments Clause, or the similar and more expansive phrase, “Office … under the United States” used in other constitutional provisions, applies to the president. Rather, the text and history of the Constitution, and post-ratification practice during the early republic, strongly support the counterintuitive view: The president does not hold an “Office … under the United States.”

One of us (Tillman) has consistently written for about a decade that elected federal officials, such as the president, do not hold “Office … under the United States.” The other one (Blackman) was persuaded by this research some years ago, long before the notion of a President Trump was even conceivable. Prior to the election, William Baude wrote that “Professor Tillman’s theory makes sense of patterns that most of us never saw. It brings order out of chaos.” To that end, we have submitted amicus briefs to the District Courts for the Southern District of New York and the District of Columbia, advancing a position that the Justice Department has not: that the president is not subject to the Foreign Emoluments Clause. We are grateful for assistance on the briefs from Carrie Severino of the Judicial Education Project and Robert W. Ray and Brittney Edwards of Thompson & Knight LLP.

In this post, we will explain that under the Constitution’s taxonomy, appointed — and not elected — officials hold office “Under … the United States.”