Presidential Electors and the Brief of the Legal Historians in CREW v. Trump

59 South Texas Law Review ____ (circa April 2018), Forthcoming

10 Pages Posted: 22 Feb 2018  

Seth Barrett Tillman

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

Date Written: February 22, 2018

Abstract

The first filed of the three Foreign Emoluments Clause cases was CREW v. Trump. Five academics (the “Legal Historians”) filed an amicus brief (the “Legal Historians Brief”) in support of the plaintiffs. The Legal Historians Brief stated: “As holders of an office ‘of trust’ under the United States, [presidential] electors [like the President] would also be subject to the [Foreign Emoluments] [C]lause.”

The Legal Historians claim regarding presidential electors is perplexing. They cite no authority for this position. More troubling is that there is a substantial body of authority taking the position that presidential electors are state positions, not federal positions, and so entirely beyond the scope of the Foreign Emoluments Clause and its Office... under the United States-language. The Legal Historians did not discuss this line of authority.

There is a more recent line of academic authority, initially put forward by Vasan Kesavan, that notes that the Constitution’s Religious Test Clause distinguishes offices under the United States from public trusts under the United States. Kesavan argues that the position of presidential elector, although a federal position, is a public trust under the United States, as opposed to an office under the United States. Again, this alternative view was not discussed by the Legal Historians.

Failing to discuss academic authority and nonbinding federal case law is not best practice. But it is certainly within the norms of the legal profession, particularly in a brief where space is scarce. Failing to discuss contrary Supreme Court authority is another matter entirely. In 1867, in United States v. Hartwell, the Supreme Court held: “The term [‘office’] embraces the ideas of tenure, duration, emolument, and duties.” Presidential electors fail — each and every element — of this four-factor test.

Suggested Citation

Tillman, Seth Barrett, Presidential Electors and the Brief of the Legal Historians in CREW v. Trump (February 22, 2018). 59 South Texas Law Review ____ (circa April 2018), Forthcoming. Available at SSRN: https://ssrn.com/abstract=3128087

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

Register to save articles to
your library

Register

Paper statistics

Downloads
101
rank
244,552
Abstract Views
2,101
PlumX