Presidential Electors and the Brief of the Legal Historians in CREW v. Trump
59 South Texas Law Review 237 (2017) -- Part II
43 Pages Posted: 22 Feb 2018 Last revised: 22 Oct 2018
Date Written: February 22, 2018
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.
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