On January 10, the Baylor Federalist Society hosted me for a discussion on “The Future of the Supreme Court.” The talk centered around my forthcoming foreword in the NYU Journal of Law & Liberty, titled SCOTUS after Scalia. Listen for a preview. I am grateful to Professor Brian Serr for offering comments after my remarks.
I tried to livestream it using Google hangout, but I realized early on that the audio was not working so I cut it short. Here are short visuals.
On January 5, 2017, I spoke on the AALS “Hot Topic” Panel on Federal Power over Immigration. Here was the roster:
Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Jennifer M. Chacon, University of California, Irvine School of Law
Speaker: Jill E. Family, Widener University Commonwealth Law School
Speaker: Anil Kalhan, Drexel University Thomas R. Kline School of Law
Moderator and Speaker: Ilya Somin, Antonin Scalia Law School at George Mason University
As originally designed, we expected to talk about how a Clinton administration would continue the Obama administration’s executive actions with respect to immigration. I would serve as the foil arguing that the separation of powers renders these policies illegal. The other right-of-center prof on the panel, Ilya, takes the position that Congress has power only over naturalization (that is, granting citizenship) but has no general power over restricting movement into the country (absent some national security interest).
However, as with virtually all other panels at AALS, the focus shifted after the election. My remarks focus on U.S. v. Texas, which now is not nearly so hot–DAPA will likely be rescinded in about 10 days. I also welcomed immigration scholars to the federalism-fold. Indeed, progressive scholars and sanctuary city advocates are now turning to precedents like Printz v. United States and New York v. United States to shield immigrations from federal enforcement. I am glad that my colleagues have at least seen the light on federalism, though in my rebuttal time, I urged some form of consistency–federalism can protect liberty in many spheres, beyond protecting sanctuary cities. This remark did not go over well in a room full of immigration profs. One of the other panelists strongly disagreed, and quoted Emerson, who said “consistency is the hobgoblin of little minds.” I’ll stand by consistency any day.
Here is the video:
And here is a group shot.
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), http://yalejreg.com/nc/should-congress-impeach-obama-for-his-emoluments-clause-violations/.
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?
During the AALS 2017 conference, Judge Posner appeared on a panel about Bill Eskridge’s work on legislation. Or, at least he phoned it in. Along with Judge Katzmann, Judge Posner spoke remotely by phone. On the panel were Justice Goodwin Liu and Judge Marsha S. Berzon.
During his remarks, Posner spoke about a pending en banc case, Hively v. Ivy Tech, which considers discrimination on the basis of sexual orientation is prohibited by Title VII. Judge Posner repeatedly referred to it as the “lesbian case.” His comments were, well, surreal.
Disembodied voices of Article III at #AALS2017 pic.twitter.com/JcWOXkaB5k
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner: “It’s terrible communication. I’ve got no sense at what Liu was driving at. Every few seconds there was silence” #AALS2017 https://t.co/nxXEe0nHyy
— Josh Blackman (@JoshMBlackman) January 6, 2017
Judge Posner is up #AALS2017
— Josh Blackman (@JoshMBlackman) January 6, 2017
Law is made by simple people. For simple people. I don’t admire the legal system, judiciary itself. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Courts should simply pick whatever most sensible interpretation, forget about intent of Congress. How can you make garbled statute useful? https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
There is a case my court heard recently, it hasn’t been decided yet, so I won’t offer an opinion. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner talking about suit where Lesbian employee fired. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Employer argued that sex means man or woman. Fired bc she was a lesbian, which is not sex, but an orientation. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
That is literal-minded interpretation. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Contrary view. Civil Rights Act of 1964. Hafl century ago. That is a different era of how we think about sex. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Today we have same-sex marriage. Given that lesbians recognized different from heterosexuals, shouldn’t we bring Civil Rights Act up to date https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
If leg in 1964 had known what was coming in half century, different attitudes toward sex, discrimination would include subgroups of genders https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Interpret statute with how it fits modern needs. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Most of what we think of is constitutional law is made up by the #SCOTUS, doesnt have to do with what 18th century ppl thought https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
4th Amendment places limits on warrants, does not require any warrants in any circumstances. But this isn’t 18th century anymore https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Natural for judges in modern times to interpret constitutional provisions to meet contemporary needs. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Justice Scalia cast deciding vote to hold burning flag is speech w/in meaning of 1st Am. That is absurd as historical interpretation https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Interpretation, realistically, includes giving meaning to a statute that wasn’t in the meaning of the thoughts who wrote the statute. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
I give absolutely no weight to the cannons of statutory construction. Ir regard them as totally worthless and meaningless and unnecessary https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
(Judges on panel smiling at Posner dismantling everything) https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Interpret statutes to meet current needs, even if not foreseen by framers. That is in short how I think about statutes https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner to Eskridge: Would you let me get a word in edge wise? What do you think about the lesbian case?
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner again: What do you think of the lesbian case? Isn’t that a simple question?
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner: What arguments are there for a narrow construction about 1964 Act?
— Josh Blackman (@JoshMBlackman) January 6, 2017
Update: Judge Posner offers a response in this post.