Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant

District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.) (filed by Josh Blackman et al.), Dkt. No. 27-1, 2017 WL 4685826

48 Pages Posted: 9 Oct 2017 Last revised: 29 Mar 2018

Seth Barrett Tillman

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law

Date Written: October 1, 2017

Abstract

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.” Plaintiffs contend that “the phrase ‘Person holding any Office of Profit or Trust,’ as used in the [Foreign Emoluments] Clause, includes the President.” Plaintiffs’ 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 phrase “Office . . . under the United States” 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 counter-intuitive view: the President does not hold an “Office . . . under the United States.”

[The Complaint: 2017 WL 2559732, filed June 12, 2017]

Suggested Citation

Tillman, Seth Barrett, Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant (October 1, 2017). District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.) (filed by Josh Blackman et al.), Dkt. No. 27-1, 2017 WL 4685826. Available at SSRN: https://ssrn.com/abstract=2996355 or http://dx.doi.org/10.2139/ssrn.2996355

Seth Barrett Tillman (Contact Author)

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law ( email )

Ollscoil na hÉireann, Má Nuad
New House (#306)
Maynooth, County Kildare
Ireland
(353) (0) 1474-7216 (Phone)

HOME PAGE: http://law.nuim.ie/staff/mr-seth-barrett-tillman

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