Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?
Josh Blackman & Seth Barrett Tillman, Who was right about the Emoluments Clauses? Judge Messitte or President Washington?, VOLOKH CONSPIRACY, August 2018
5 Pages Posted: 17 Aug 2018 Last revised: 18 Aug 2018
Date Written: August 3, 2018
In a series of writings and briefs, we have maintained that President Washington’s practices refute the legal claims that President Trump has violated the Foreign and Domestic Emoluments Clauses. President Washington received valuable gifts from foreign governments without seeking congressional content. Furthermore, he purchased land from the federal government in a public auction. Based on our understanding of the Foreign and Domestic Emoluments Clauses, these acts were perfectly lawful. However, under the constructions put forward in ongoing litigation, President Washington publicly violated both provisions. Those opposing President Trump respond that President Washington was either mistaken or he brazenly violated the Constitution he helped to define. These litigation positions are contrary to a weight of bona fide authority. Time and again, the Supreme Court has looked to Washington’s decisions and practice when interpreting the text and structure of the Constitution. In Youngstown Sheet & Tube Co. v. Sawyer, Justice Frankfurter fittingly “derive[d] consolation from the reflection that the President and the Congress between them will continue to safeguard the heritage which comes to them straight from George Washington.” Washington’s public acts such as accepting diplomatic gifts, are entitled to special solicitude when construing the Constitution. In America’s Unwritten Constitution, Akhil Reed Amar wrote “Washington defined the archetypical presidential role,” and “[a]s America’s first ‘first man,’ [he] set precedents from his earliest moments on the job.” Until recently, no court had opined on the validity of Washington’s practices with respect to the Emoluments Clauses. The Honorable George B. Daniels of the U.S. District Court for the Southern District of New York concluded that the case was not justiciable. Therefore, in December 2017, he granted the government’s motion to dismiss. (That case is currently on appeal to the Second Circuit.) However, on July 25, 2018, the Honorable Peter J. Messitte of the U.S. District Court for the District of Maryland denied the government’s motion to dismiss. And in doing so, Judge Messitte devoted nearly five pages to the arguments we raised in our briefs. Though he rejected each and every one of our positions, we are grateful to the Court for shining a light on these important historical issues. Judge Messitte put on notice the Fourth Circuit, and all other courts, that any ruling for the Plaintiffs ought to address our arguments. Stated differently, if President Washington was correct, then President Trump should prevail. In order for the Plaintiffs to prevail, the courts must demonstrate that President Washington was wrong. In July 2016, Professor Will Baude wrote that the Tillman has “singlehandedly shifted the burden of proof.” In any event, in ordinary civil litigation, the burden of persuasion rests with Plaintiffs. Because Judge Messitte’s opinion is marred by plain historical errors, the Plaintiffs have not carried that burden.
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