The Foreign Emoluments Clause Applies to the President, Vice President, and All Other Positions in the Federal Government: A Response to Prof. Seth Barrett Tillman

49 Pages Posted: 14 May 2019

Date Written: May 4, 2019

Abstract

The U.S. Constitution’s Foreign Emoluments Clause (Art. I. Sec. 9, Par. 8) and Domestic Emoluments Clause (Art. II, Sec. 1, Par. 7) have accrued a new level of scrutiny since the election of President Donald J. Trump. Mr. Trump is a businessman turned politician who has provably continued to participate in revenue-raising transactions with overseas and domestic government entities after his inauguration, in seeming offense to Constitutional provisions that some have described as essential anti-corruption measures. Legal scholars including Prof. Seth Barrett Tillman and Prof. Josh M. Blackman have forwarded a range of positions arguing that such presidential conduct as Mr. Trump’s is not in conflict with the Constitution. Key among those is an argument that the Foreign Emoluments Clause’s specific construction exempts elected government officials, including the President, from the prohibition against receiving foreign emoluments. More rigorous and contextualized analysis presented here casts doubt not only on the potency of that assertion, but also on the myriad of additional historical and textual arguments these scholars have published.

Keywords: Constitution, Emoluments Clause, constitutional law, supreme court, early American history, federalist papers, George Washington, James Madison, Alexander Hamilton, Thomas Jefferson

Suggested Citation

Hennessey, Jonathan, The Foreign Emoluments Clause Applies to the President, Vice President, and All Other Positions in the Federal Government: A Response to Prof. Seth Barrett Tillman (May 4, 2019). Available at SSRN: https://ssrn.com/abstract=3382876 or http://dx.doi.org/10.2139/ssrn.3382876

Jonathan Hennessey (Contact Author)

affiliation not provided to SSRN

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