Balkinization: The Real Purpose of the Foreign Emoluments Clause

Comments:

Gerard:The true problem is that presidential business interests give foreign nations leverage over a President that could harm the national interest...They could just retaliate against the Trump Organization...This is why someday I hope Congress enacts legislation to enforce the Clause effectively.

What are you proposing? Congress enacting a statute banning all business owners, or perhaps those with international interests, from serving as POTUS?

The better method of eliminating this potential blackmail of POTUS is for Congress to withdraw all powers unconstitutionally delegated to POTUS and the bureaucracy to impose tariffs and other directions of the economy and trade.

# posted by

Bart DePalma : 10:08 PM

There are various lawsuits and they aren't just about the Foreign Emoluments Clause, to be clear, and I think among all the litigants someone has standing. See, e.g.,:

https://takecareblog.com/blog/district-court-tries-too-hard-to-duck-emoluments-clause-case

A basic concern, at any rate, is to avoid enrichment and influence from foreign parties in various ways. Anyway, these days, the basic rule is to follow the text:

"no Person holding any Office of Profit or Trust under them, 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"

What does the tariff example prove? Is this some sort of "congruent and proportionality" standard where emoluments are okay unless there is some (in the opinion of the court) "more logical" way for some often illogical foreign actor here to influence Trump? There is a good way to make such judgments -- Congress can regulate and make exceptions though another domestic emolument clause is more absolute.

The clause bars something. If it is occurring, it is breached. There is numerous ways where such emoluments (granting that part is here) puts forth a risk of corruption, thus a major bar is in place, one even broader in another emoluments provision. I can understand, though don't agree with the political question argument out there. I think the standing argument with all the litigants here overbroad. This further approach really takes things too far.

Basically we are amending the clause twofold: first, the "more logical" test. Second, the clause is waived unless Congress acts, when the text suggests the rule should be the other way around.

# posted by

Joe : 10:09 PM

The basic problem with the emoluments charge against Trump, is that it fails the Washington test: If a President is doing something Washington did without complaints, you're in a poor position to argue he's acting unethically. (Barring something like the 13th amendment, of course.)

Multiple Presidents had huge business empires before Trump, and selling off your business interests when elected is a relatively new development. None of them got convicted of violating the emoluments clause, so far as I recall. Not even charged, because the emoluments clause was never interpreted to apply to the proceeds from normal commercial transactions.

It's just more TrumpLaw, that's all.

More specifically, if you cast this as a concern that Trump's financial interests might be retaliated against, this is an even weaker case. Does anybody really think not being targeted for damage is an "emolument"?

I can see the concern in that case, I really can, but it's not a constitutional concern.

# posted by

Brett : 8:14 AM

So we can mark down SPAM and Brett as having no problems with Trump advancing his personal business interests. I wonder how SPAM and Brett would have reacted if during his presidency Obama was a partner of a major law firm, on leave of absence, but planning to return to the firm after his two terms.

SPAM at least comes up with an idea:

"The better method of eliminating this potential blackmail of POTUS is for Congress to withdraw all powers unconstitutionally delegated to POTUS and the bureaucracy to impose tariffs and other directions of the economy and trade."

But even SPAM knows this would not happen with the currently controlled Republican Congress, even assuming Congress could do that.

As for Brett, he just likes a grift because of the white lies of Hope Hicks on the question of Trump's views , including on white supremacy. Brett says:

"Multiple Presidents had huge business empires before Trump, ...."

and perhaps will amaze us with details of such over the course of this thread, examples comparable to Trump's grifts. How about a haberdashery store? Washington and all the slaves on his plantation?

# posted by

Shag from Brookline : 9:06 AM

I'm SHOCKED, SHOCKED, that Gerard's post has no specific reference to the bill of rights.

Nor does Gerard refer to Article II's "Take Care" clause which deals with the "business" of America not the President's personal business. Do SPAM and Brett believe that Don, Jr. and Eric are more than The Donald's puppets in managing Trump Enterprises?

# posted by

Shag from Brookline : 9:10 AM

I'm pretty skeptical of an argument (Brett's) which casts aside the plain language of the text in favor of saying "we didn't enforce this before so we shouldn't enforce it now".

I agree with Joe that the clause is written to be self-enforcing, meaning here that I see no need for further legislation. If someone has standing to sue -- and it's not clear to me that the current plaintiffs do -- then the clause should be enforceable in court.* Alternatively, one could argue that Congress alone has the power to enforce the clause via impeachment or perhaps legislation requiring restitution.

The biggest issue with Trump is that much of his corruption comes from non-governmental actors, while the clause is limited to governments. Additional wording would be helpful here.

*Bear in mind that standing rules are extra-Constitutional and therefore have less weight with me than express words.

# posted by

Mark Field : 9:41 AM

Mark:

The text of the Emoluments Clause does not cover normal business revenues. There is nothing to overlook.

Violation of the EC is best viewed as a misdemeanor ground for impeachment. I do not see how law enforcement using a law of Congress can enforce the EC.

# posted by

Bart DePalma : 10:14 AM

What plain language, Mark? It says "emoluments", it's a word we need a definition for, and I'm producing evidence that the definition has never before encompassed normal business profits.

# posted by

Brett : 10:29 AM

Shag: I wonder how SPAM and Brett would have reacted if during his presidency Obama was a partner of a major law firm, on leave of absence, but planning to return to the firm after his two terms.

I would applaud. I would love to see a POTUS start out doing and then return to productive private work, instead of seeing the office as the culmination of a lifetime in the political class.

# posted by

Bart DePalma : 11:01 AM

From the OED: "Profit or gain arising from station, office, or employment; dues, reward, remuneration, salary."

Two further points:

1. The word HAS a definition. What you're doing is trying to create an exception to that definition based on a claim of historical practice. BUT,

2. The absence of enforcement after ratification (assuming that's true) doesn't tell us how the word was commonly understood at the time of ratification. Clauses can remain unenforced for many reasons. For example, you yourself have argued that the P&I clause should be enforced even though it never has been. This is all the more important when corruption and partisan politics are involved, since the beneficiaries of the corruption have a direct incentive not to enforce rules against it.

# posted by

Mark Field : 11:06 AM

Mark:

"Profit or gain ARISING FROM station, office, or employment; dues, reward, remuneration, salary."

If the POTUS owns a profitable business before taking office, how are the ongoing business profits realized after taking office "arising from" that office?

If Congress can show an emolument flowing through the POTUS' business outside of the normal course of business, then they have a misdemeanor and possibly bribery upon which to impeach and remove the POTUS.

# posted by

Bart DePalma : 11:14 AM

SPAM obviously does not understand ethical concepts. Consider Trump's visits to his golf courses, to his resorts, just about every weekend. Consider political events there and participations by foreign nations. Remember the activities at Mar-A-Lago with Pres. Xi of China? Foreign nationals at Trump DC hotel? Trump its tending to his personal business at these sites he owns, not the business of America. Part of taking care of the business of America is to take steps to address attempts by foreign nations from interfering in voting in elections in America.

SPAM's 11:01 AM comment was a shallow response. It's obvious SPAM continues in lockstep with the Trump Administration.

# posted by

Shag from Brookline : 11:49 AM

"President is doing something Washington did"

First, the lead post is not quite about that -- it makes a more general argument. Anyway, as Mark Field says, non-enforcement doesn't make it okay. When the 14A is involved, Brett says that is a bad thing. Here, it is assumed accepted practice = well, that's okay.

Trump is not actually merely doing something Washington did. The first stream of presidents actually didn't have "big business empires" or anything & to the degree that occurred later, Congress has the power to make exceptions to regulate things. And, I wouldn't' be surprised if the original framers would have been wary of corruption in later cases. Factoring in how things changed over the years, including the breadth of possibility of corruption in a large multinational business is sensible here.

Something as extreme as Trump's situation, however, is rather special. Yet again, him being special was supposed to be A BIG PART of why he should be elected. When it suits, however, these things are ignored, and he is apparently ... yawn.

There was enforcement -- there were multiple long discussions of the matter that spelled out this. Like any constitutional dispute, there was competing takes, but the challengers & their supporters here have used historical evidence to help their case.

# posted by

Joe : 12:43 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 12:45 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 12:47 PM

Shag:

There is no "ethics clause" in the Constitution. Before he became POTUS, Trump spent much of his time conducting business and leisure at his various properties. If the voters do not think it seemly for Trump to continue that practice as POTUS, they are free to fire him in 2020.

I might take the Democrats' sudden concern for ethics more seriously if they showed similar (or any) concern about the Clinton's exponentially more egregious and very likely criminal influence peddling business, by which they made a nine-figure personal fortune from insane "speaking fees" and paid for their lavish lodging, dining and travel expenses, as well as their daughter's and cronies' handsome salaries, out of foundation administrative funds, the bill for which was footed by foreign governments and the world plutocracy.

# posted by

Bart DePalma : 12:50 PM

This comment has been removed by the author.

# posted by

Joe : 12:53 PM

"the P&I clause should be enforced even though it never has been"

It has been -- see, e.g., Saenz v. Roe -- just not as broadly as he feels warranted.

===

I think the nature of the Emoluments Clause is such that it warrants congressional legislation to spell out the various nuances of the situation with sensible exceptions for de minimis cases and so forth. But, as with school segregation and other things, congressional inaction can compel court action to fill in the details more. Either way, Congress is at fault.

Current standing rules are at times too restrictive but looks to me there are actual people with concrete harms here, at least enough to go to trial, it isn't merely a general citizen suit. Relief there can be further disclosure to determine if more wrongdoing is present, some sort of damages if wrongful enrichment is shown, etc.

Congress can also use the clause in various ways, including requiring full tax returns to be disclosed to help bar/flag possible violations. As with the 14A, enforcement might go beyond what is compelled by the text, and providing helpful nuanced detail a court might not best to handle ala what exactly is "excessive" bail or whatever.

# posted by

Joe : 1:03 PM

Perhaps a libertarian such as SPAM who lacks ethics and a textualist when it is convenient for his biases, SPAM says:

"There is no 'ethics clause' in the Constitution."

But oaths undertaken by elected (and other) officials under the Constitution involve ethics. And Article II's "Take Care" clause implies ethical concepts regarding various provisions of the Constitution that the President is to address.

SPAM has a short term memory loss regarding Trump in his campaign stressing how he would be a full time President from day one and not spend so much time golfing as he claimed President Obama did.

Also, does SPAM have more reason now to believe his claim while on Cruz Control that Trump was a fascist, focusing on Trump's recent approval of Xi as China's president for life and for Trump's continuing admiration for Putin and liking Duarte's method of handling drug dealers, with suggestions by Trump that some of this might just be right for America. Query: Does the Constitution read as a whole encourage an unethical President?

# posted by

Shag from Brookline : 1:34 PM

Joe: I think the nature of the Emoluments Clause is such that it warrants congressional legislation to spell out the various nuances of the situation with sensible exceptions for de minimis cases and so forth.

OK, let's say Congress enacts a statute forbidding the POTUS from owning a business which does foreign business and the POTUS ignores it as unconstitutional, who is going to enforce the law?

Is the bureaucracy going to sue its boss and ask the courts to order the POTUS to sell the business?

A third party has no obvious standing, which is why the current suit should fail without a ruling on the merits.

If some progressive judge decides to rewrite the standing law and the Constitution to order POTUS to sell the business, such an order can only be enforced by the POTUS's bureaucracy seizing and then auctioning the business. On appeal, the far less progressive higher courts will likely declare this a political issue to be decided by the elected branches. Then, we properly return to Congress deciding whether to exercise its impeachment and removal power.

Congress can make this decision without enacting a statute.

# posted by

Bart DePalma : 1:39 PM

BD: "There is no 'ethics clause' in the Constitution."

Shag: But oaths undertaken by elected (and other) officials under the Constitution involve ethics.

Actually, the POTUS' oath of office requires he or she "protect and defend the Constitution," which, of course, does not require adherence to a set of business ethics rules.

Shag: And Article II's "Take Care" clause implies ethical concepts regarding various provisions of the Constitution that the President is to address.

The Constitution requires POTUS to take care to enforce constitutional laws of Congress. The Constitution nowhere grants Congress the power to enact laws adding requirements to the Constitution's own requirements for office, which again do not require the POTUS to divest his businesses.

# posted by

Bart DePalma : 1:47 PM

"Does the Constitution read as a whole encourage an unethical President?"

Shouldn't necessarily though "ethics" is not always the same as general good conduct. Ethics is rightful conduct in context, so there can be "honor among thieves."

Marty Lederman, sometimes Balkanization contributor, commented on emoluments over at Take Care Blog, including how the administration's own brief could be used to hang them by their own petard. Overall, as Zephhyr Teachout et. al. argue, corruption was a general concern for those who wrote the Constitution, and its text in various ways is in place fights it.

The hows there of course is a matter of much debate.

# posted by

Joe : 2:21 PM

Surely SPAM is aware of the Constitution's three (3) emolument clauses. At least one of these (foreign) has an involvement with Congress. In the past when a president has had a situation that might involve such an emolument, the president would present it to Congress. Much had been written before Trump's inauguration on the issue of emoluments. But Trump did not bring the matter to Congress' attention. Rather, Trump had this phony family (Jr. and Eric) arrangement on the business of Trump Enterprises. Perhaps SPAM believes that Trump had the intelligence to understand that under the Constitution the emoluments clauses might apply to Trump Enterprises, so there was no need to go to Congress. Perhaps SPAM in his rural law practice ballots along the line/grey areas of the law. But more is expected of the President, who had ignored norms that had been established for prior presidents. When one ballets near the line [I'm picturing SPAM and Trump in tutus!], there's a chance it might be crossed. All along Trump has had the hope that the hicks would buy into his con. Now hope has sprung external but the hicks [Trump's base] could care less.

Joe's point about "corruption" for the Framers has been pointed out in the Federalist Papers.

# posted by

Shag from Brookline : 2:44 PM

Shag: In the past when a president has had a situation that might involve such an emolument, the president would present it to Congress.

Before the Democrats went clinically insane over Trump, presidential emoluments were generally limited to the gifts foreign officials gave the POTUS.

I do not recall any past President who owned a business requesting congressional guidance on how to dispose of business profits. Do you?

# posted by

Bart DePalma : 2:57 PM

SPAM asks:

"
"I do not recall any past President who owned a business requesting congressional guidance on how to dispose of business profits. Do you?"

No. But I do recall a norm of a president owning a business selling the business, or using blind trusts, to avoid even the appearance of a conflict of interest

# posted by

Shag from Brookline : 3:05 PM

BD: "I do not recall any past President who owned a business requesting congressional guidance on how to dispose of business profits. Do you?"

Shag: No. But I do recall a norm of a president owning a business selling the business, or using blind trusts, to avoid even the appearance of a conflict of interest

When did a POTUS ever sell his business to avoid the appearance of a conflict of interest? If there was one, I am sure the Dems would be beating Trump over the head with it.

In any case, as I noted from the outset, if Congress withdrew its unconstitutional delegations of power allowing POTUS and the bureaucracy to impose taxes and direct the economy, such appearances disappear.

# posted by

Bart DePalma : 3:16 PM

" The first stream of presidents actually didn't have "big business empires" or anything"

In terms of the fraction of the overall economy they own(ed), Washington was probably quite a bit wealthier than Trump.

# posted by

Brett : 3:16 PM

This comment has been removed by the author.

# posted by

Joe : 4:44 PM

"In terms of the fraction of the overall economy they own(ed), Washington was probably quite a bit wealthier than Trump."

FWIW, a quick search leads to accounts that have GW second or third among presidents in wealth. Don't know what the "terms of the fraction" gloss adds.

But, what about the actual words -- "big business empires," particularly of the type like Trump's with that level of international reach and scale, specific problems cited? That to me seems the most important comparison, not mere wealth. Surely many were very wealthy.

Mark Field's point as to underenforcement -- though to be clear, the clause was enforced in certain ways and Shag's point as to letting Congress decide is also important -- holds. The Yazoo land frauds is an early case of corruption but need not be deemed a model.

https://takecareblog.com/blog/george-washington-s-secret-land-deal-actually-strengthens-crew-s-emoluments-claim

# posted by

Joe : 5:04 PM

Let's put some perspective on Trump's business interests with a comparison to Jimmy Carter's peanut farm:

https://www.nytimes.com/2016/11/17/opinion/what-trump-can-do-to-eliminate-his-conflicts-of-interest.html

that includes this paragraph:

"When Jimmy Carter became president, he put his relatively simple businesses — a peanut farm and warehouse — into a trust that gave an independent trustee the discretion to sell the warehouse and to rent out the farm without Mr. Carter’s approval. An arrangement like that might serve the public interest in Mr. Trump’s case. But the cleanest path out of Mr. Trump’s tangle of conflicts would be for him to sell his holdings and put the proceeds into a blind trust operated by independent managers."

# posted by

Shag from Brookline : 8:13 PM

And here's a link to an article on presidents using blind trusts:

https://www.forbes.com/sites/jenniferwang/2016/11/15/why-trump-wont-use-a-blind-trust-and-what-his-predecessors-did-with-their-assets/#635d565c29c0

"Why Trump Won't Use A Blind Trust And What His Predecessors Did With Their Assets" Jennifer Wang , Forbes Staff

Trump is obviously a libertarian and a libertine.

# posted by

Shag from Brookline : 8:24 PM

Shag:

Carter's farm was not active and did not need to be actively managed. Trump owns active businesses around the world. He cannot simply put those in trust.

# posted by

Bart DePalma : 8:47 AM

SPAM's "anal-ysis" of Carter's business ignores the comparatively gross potential and actual conflicts of interests raised by Trump's business both domestically and internationally. In the valley of the blind Trump supporters, the one-eyed [libertarian] Trump is King. SPAM exposes his own simpletonian mind with: "He [Trump[ cannot put those in trust." So SPAM looks upon Trump as taking care of his own businesses while obliged under Article II's "Take Care" clause regarding the business of America. Perhaps some Trump supporters - like Brett - might believe that Trump's businesses are in a de facto "blind trust" with Junior and Eric as objective trustees. SPAM obviously knows more about Blind Man's Bluff than the sophistication of blind trusts.

But going back to Jimmy Carter, SPAM is ignorant of the business dynamics of Carter's business. Keep in mind the Republican pressures of Carter potential conflicts of interests: peanuts, compared to the hundreds of Trump's business entities. But SPAM in his rural practice probably looks at every business like a "MA and PA" operation.

# posted by

Shag from Brookline : 9:12 AM

Here's theOnion's" take on Carter's peanut farm:

https://www.theonion.com/you-people-made-me-give-up-my-peanut-farm-before-i-got-1819585048

"You People Made Me Give Up My Peanut Farm Before I Got To Be President"

with Carter's comparative with Donald in the fictional voice of Jimmy Carter. Carter may have set a precedent for subsequent presidents, but not Trump, who is obviously not blind to his business interests domestically and internationally. As they say in the 'hood, Trump's taking care of business, his own.

# posted by

Shag from Brookline : 9:53 AM

Shag:

The Constitution grants Congress limited powers to direct the economy and none at all to the POTUS. Once again, if Congress yanks its unconstitutional delegations of often unconstitutional powers to direct the economy to the POTUS and the bureaucracy, a businessman serving as POTUS does not have any conflicts of interest.

This is why Washington owned a plantation which engaged in international trade, but no one saw a conflict of interest.

There is no need to create unconstitutional limits on who can serve as POTUS to remedy the conflicts of interest created by unconstitutional directions of the economy.

# posted by

Bart DePalma : 9:56 AM

Shag:

Carter had not managed the family peanut business since the early 1960s, at which time he entered GA politics.

# posted by

Bart DePalma : 10:00 AM

SPAM is a lockstep political supporter of the non-Mensch Trump. And SPAM continues his tilting at windmills with his repeat at 3:16 PM:

"In any case, as I noted from the outset, if Congress withdrew its unconstitutional delegations of power allowing POTUS and the bureaucracy to impose taxes and direct the economy, such appearances disappear."

SPAM continues his libertarian mantra of selfishness uber selflessness in his support on the non-Mensch Trump. Perhaps SPAM is one of the "Forgotten" in his rurality of unreality. SPAM's constitutional "lance" is limp with his hopes of certain actions by Congress. Of course, SPAM'a proposed solution fails to inform just how "such appearances [would] disappear." There were actual conflicts back in SPAM's vaunted America's best days in The Gilded Age of the late 19th century.

# posted by

Shag from Brookline : 10:44 AM

I don't know why it took me so long, but last night I remembered that John Mikhail posted twice about the original meaning of "emoluments" about a year ago. You can find them as the first 2 results here: https://balkin.blogspot.com/search?q=emoluments

# posted by

Mark Field : 11:06 AM

Mark Field is using history and text to clarify the meaning of the Constitution again.

Damn leftist with his TrumpLaw. I need some peanut butter.

[The stuff is interesting though clearly it only takes us so far. Peggy Pascoe, e.g., explained in her book "What Comes Naturally" (read after it was cited on another blog) that some original understanding existed that interracial marriage is protected by the Fourteenth Amendment. This is sometimes cited by "originalists" but then she also notes others had different views. And that is beyond the idea that the meaning of constitutional text is not merely what was originally understood when it was written.]

# posted by

Joe : 11:17 AM

Yeah, it's pretty rare to find universal agreement on even the most basic points. We don't see that today; no reason to expect it back then. And that's putting aside the limited access we have to what people actually thought -- not only is our sample quite small when it comes to the white males who could actually vote, the speeches and writings we do have aren't enough to clarify most points. To say nothing of what to do when someone (say, Madison or Hamilton) changed his mind.

# posted by

Mark Field : 11:56 AM

Mark:

The term “profit” when used to define the term “emolument” does not refer to consideration a business receives in compensation for providing a good or service.

Emolument used in the constitution’s clause is one of a list of gifts or grants made by a foreign government, not a consideration.

# posted by

Bart DePalma : 12:00 PM

SPAM as a textualist when it is convenient for his purposes uses his ouija board to inform us as to the original public meaning of the 1787 Constitution. But originalism of any particular stripe is not the controlling means of interpretation/construction of the Constitution. There are non-originalism methods for such long in place. Who on SCOTUS are dedicated originalists? The Gilded Age of the late 19th century was long after the 1787 Constitution was ratified and SPAM has demonstrated that he doesn't know his derriere from his elbow on that era of corruption. SPAM's second paragraph 12:00 PM indicates it would not be a foreign emolument if the foreign government bribed (consideration) to take certain actions that would be corruptive. SPAM's definitiveness magnifies his ignorance on the subject of the emoluments clauses.

# posted by

Shag from Brookline : 2:09 PM

Victoria Nourse -- whose writings I have found interested -- wrote an article entitled "Reclaiming the Constitutional Text from Originalism: The Case of Executive Power"

https://scholarship.law.georgetown.edu/facpub/2021/

Mark Field is of course correct though he finds the history interesting, of some value and at times uses it to show that even on their own terms the arguments of some are off.

Tonight's Landmark Cases episode (CSPAN/9PM EST, available on website after) will be on the Civil Rights Cases.

http://landmarkcases.c-span.org/Case/17/Civil-Rights-Cases

# posted by

Joe : 2:15 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 2:34 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 2:35 PM

BD: The term “profit” when used to define the term “emolument” does not refer to consideration a business receives in compensation for providing a good or service.

Shag: SPAM as a textualist when it is convenient for his purposes uses his ouija board to inform us as to the original public meaning of the 1787 Constitution.

Quija board? Try the Balikinizaton articles to which Mark linked exploring usage of the term "emolument" at the time the Constitution was drafted.

But originalism of any particular stripe is not the controlling means of interpretation/construction of the Constitution. There are non-originalism methods for such long in place.

Like arbitrarily rewriting the text to rubber stamp preferred progressive policy?

Who on SCOTUS are dedicated originalists?

Thomas, Alito and hopefully Gorsuch. Roberts for the most part.

SPAM's second paragraph 12:00 PM indicates it would not be a foreign emolument if the foreign government bribed (consideration) to take certain actions that would be corruptive.

OK, for those who had no problem with the Clintons' influence peddling business, I expressly limit my observation to lawful goods and services.

# posted by

Bart DePalma : 2:35 PM

There have been quite a few articles post-Trump election on the emoluments clauses in the Constitution. Just Google "Law review articles on emoluments clauses" to locate many of them. Then there are the pending lawsuits with emoluments issues, with extensive amici briefs. Some take an originalism approach. Some focus more on history. There are extensive disputes on the interpretation/construction of the emoluments clauses reflected in these writings, whether based on originalism or non-originalism. But of course SPAM is an advocate at heart for the libertarian Trump on the issues, such that he has no doubts about the meanings of these clauses, although he did make an adjustment at the end of his 2:35 PM comments. I realize that SPAM does his Google research on the fly. Of course he prior to his 2:35 PM SPAM cited no specific articles for his no doubts views. And how sure is SPAM that Alito is an originalist. It's a stretch to call Roberts an originalist. And there are some commenters who question whether Gorsuch is a true originalist or a conservative trying to restore his mother's environmental views in the Reagan Administration. Why there is even a corpus lingus extensive paper on emoluments.

I have over the years developed doubts on the interpretation/construction of the Corporation based on decisions that have come down during my lifetime. Constitutional law is not static.

But SPAM shows his biases with his closing reference to the Clintons, as SPAM fails to specify details and when. I note in news items today that Trump International is planning on installing at some of its golf courses the US Seal on markers at each hole. Is this for "national security" in case Trump plays the Rodney Dangerfield role in "Caddyshack" on weekends" (VP Mike Pence fits the Ted Knight "Caddyshack" role.) There is a prohibition in the US Code against using the Seal for commercial purposes. Will Trump "Take Care" of the situation?

# posted by

Shag from Brookline : 4:13 PM

Shag:

I generally do not farm out my textual analysis to google.

In this case, the textual analysis took maybe 15 minutes and was not complex.

1) The Balkinization articles concerning the original meaning of the term "emoluments" provided adequate examples of contemporary usage of the term. It did not take much work to distinguish consideration for the provision of legal goods and services from those examples.

2) Then I read the EC itself. Every other forbidden item is a gift or a grant from a foreign government, so there is no reason to believe the inclusion of emolument on that list was otherwise.

As to the Supremes, Thomas has a long record of unblemished original meaning jurisprudence. Alito a shorter one. Gorsuch appears promising, but then again so did Roberts. Roberts betrayed his promise to be an objective umpire when he caved to institutional pressure and wrote the two execrable opinions saving parts of Obamacare. However, the Chief has been pretty good otherwise.

# posted by

Bart DePalma : 4:47 PM

SPAM, you are advocating for Trump. Maybe you'll get an appointment to be relieved of the tedium of your rural practice for which you may be overskilled.

# posted by

Shag from Brookline : 7:37 PM

"distinguish consideration for the provision of legal goods and services"

"Every other forbidden item is a gift or a grant from a foreign government"

Bart's formalism is laughable.

So if I say, "Mr. President, please work to drop those sanctions and I'll give you this briefcase of 1 million dollars" that's forbidden, but if I say "Mr. President, please work to drop those sanctions and I'll have my company buy X from your company at 1 million dollars profit to you" then it's fine and dandy.

# posted by

Mista Whiskas : 9:12 PM