Memorandum of Law in Support of Motion for Leave of Amicus Curiae Scholar Seth Barrett Tillman and Proposed Amicus Curiae Judicial Education Project to be Heard at Oral Arguments
Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.) (filed by Robert W. Ray, Esq. et al.), Dkt. No. 87, 2017 WL 4685887
6 Pages Posted: 18 Oct 2017 Last revised: 29 Mar 2018
Date Written: September 19, 2017
The Defendant declined to argue that the Foreign Emoluments Clause does not encompass the presidency — a position, that if successful, would result in the dismissal of a substantial part of the complaint. Since 2008, Tillman has consistently written that the Constitution’s “office… under the United States” language and, more specifically, the Constitution’s Foreign Emoluments Clause do not encompass the presidency or any other elected positions. Should the Court find that Plaintiffs’ complaint moves forward despite Defendant’s defenses connected to standing (and other threshold questions), this Court will have to assess whether the Foreign Emoluments Clause and its “Office... under the United States” language applies to the President. In the absence of Amici’s participation, there will be a lack of adversarial proceedings on a wholly novel question that has not been addressed by the Supreme Court. Unless the case is dismissed on standing or other jurisdictional grounds, a ruling on this important constitutional issue cannot be avoided.
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