A Compilation: The Emoluments Clauses Litigation
Seth Barrett Tillman, A Compilation: The Emoluments Clauses Litigation, VOLOKH CONSPIRACY (Sept. 25, 2017–Aug. 3, 2018)
40 Pages Posted: 20 Aug 2019
Date Written: 2017
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." In a series of coordinated lawsuits brought under the Foreign Emoluments Clause, plaintiffs contend that because "Defendant Donald J. Trump is the President of the United States of America," he "thus holds an 'Office of Profit or Trust' under the United States." Their 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 and more expansive phrase, "Office … under the United States" used 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."
Note: This overall 9-part series of separate, but related articles (i.e., lengthy blog posts) is a Tillman-organized & Tillman-compiled publication. Each individual article was first published on The Volokh Conspiracy (“VC”). Parts 1 to 5 were first published when VC appeared on The Washington Post and parts 6 to 9 were first published when VC appeared (as it still does) on Reason’s website. Each of the nine blog posts was co-authored with Professor Josh Blackman—but this overall compilation is a Tillman publication.
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