New in WSJ: DOJ Should Abandon 2009 OLC Opinion Concerning Foreign Emoluments Clause

October 15th, 2017

The Wall Street Journal has published an Op-Ed from me and Seth Barrett Tillman concerning the Foreign Emoluments Clause Litigation. Despite the headline–which we did not select–the thrust of the piece is that DOJ should abandon the 2009 OLC Opinion which concludes, without any analysis, that the Foreign Emoluments Clause “surely” applies to the President.

Here is the introduction:

The Trump administration has been under siege from the left’s self-professed “legal resistance.” Perhaps the highest-profile example involves President Trump himself. Several lawsuits allege that his business interests run afoul of the Constitution’s Foreign Emoluments Clause.

The Justice Department has done a good job defending the president’s actions on most issues—but not on this one. The department still has refused to make its strongest argument: that the Foreign Emoluments Clause does not apply to the president. The Trump administration needs to throw out a 2009 opinion from the department’s Office of Legal Counsel that concluded, without any analysis, that the Foreign Emoluments Clause “surely” applied to President Obama. Instead the department should defend the president’s unitary role in the separation of powers—a position the Constitution supports.

I will be in New York on Wednesday for oral arguments in the Southern District of New York. I plan to report on the case shortly after arguments conclude.