Precisely eight years in the past, President Trump was sued for violating the Overseas Emoluments Clause. Most individuals had by no means heard of this provision of the Structure. Finally, not one of the numerous instances made it to a closing judgment. President Biden’s inauguration in January 2021 ended all the litigation.
4 years later, we count on litigation over the Emoluments Clause to renew at any minute.
I’m glad to share the fifth installment of my ten-part sequence with Seth Barrett Tillman on the places of work and officers of the Structure.
Josh Blackman & Seth Barrett Tillman, Workplaces and Officers of the Structure, Half V: The Elector Incompatibility, Impeachment Disqualification, Incompatibility, and Overseas Emoluments Clauses, 63(3) S. Tex. L. Rev. 237–425 (Oct. 2024), <https://ssrn.com/summary=4527680>;
Right here is the summary:
The Structure of 1788’s authentic seven articles embody twenty-two provisions that seek advice from “places of work” and “officers.” Some clauses use the phrases “workplace” or “officer,” standing alone and unmodified. Different clauses use the phrase “workplace” or “officer” adopted by a modifier, equivalent to “of america,” “beneath america,” or “beneath the Authority of america.” We seek advice from the language in these twenty-two provisions because the Structure’s divergent “workplace”- and “officer”-language.
This Article is the fifth installment of a deliberate ten-part sequence that gives the primary complete examination of the places of work and officers of the Structure. The primary installment launched the sequence. The second installment recognized 4 approaches to grasp the Structure’s divergent “workplace”- and “officer”-language. The third installment analyzed the phrase “Officers of america,” which is used within the Appointment Clause, Impeachment Clause, Commissions Clause, and Oath or Affirmation Clause. The fourth installment traced the historical past of the “Workplace . . . beneath america” drafting conference.
This fifth installment will focus on how the “Workplace . . . beneath america” drafting conference is used within the Structure. The Appointments Clause defines the phrase “officers of america.” The Structure, against this, doesn’t present an identical definition for the phrase “Workplace . . . beneath america.” Right here, the Framers relied on a phrase that was not expressly outlined within the Structure. This choice has led to some confusion. After all, the phrase “Workplace . . . beneath america” just isn’t distinctive on this approach. The Framers used different such phrases that weren’t expressly outlined by the Structure’s textual content. Fairly, these phrases took their that means from historic utilization.
We additionally took a very deep dive in items given to Presidents. A lot of this analysis, as greatest as we will inform, has not been printed within the context of the Overseas Emoluments Clause. Here’s a abstract:
Part V traces the connection between the Overseas Emoluments Clause and the presidency, from Washington to Trump. In complete, we’ll focus on international items given to greater than thirty presidencies. We divide these presidencies into seven classes. Solely a handful of those international items have been studied in previous scholarship and litigation regarding the Overseas Emoluments Clause. Class #1 consists of 4 presidents from the Early Republic, who took actions which are in line with our place that the President just isn’t topic to the Overseas Emoluments Clause: Presidents George Washington, Thomas Jefferson, James Madison, and James Monroe. Class #2 consists of presidents who expressly requested Congress to get rid of international items: Presidents Andrew Jackson, Martin Van Buren, John Tyler, and Abraham Lincoln. Class #3 consists of presidents who unilaterally disposed of international items in authorities archives: Presidents John Quincy Adams, Abraham Lincoln (sure, Lincoln once more), and Rutherford B. Hayes. Class #4 consists of six presidents who unilaterally donated international state items to the Smithsonian Institute: Presidents Franklin Pierce, James Buchanan, Andrew Johnson, Grover Cleveland, Theodore Roosevelt, and Calvin Coolidge. Class #5 consists of presidents who (seemingly) accepted international items and didn’t give up them. We hedge for causes that might be mentioned beneath. Class #6 discusses 4 first girls who accepted priceless international items: Mary Todd Lincoln, Eliza Johnson, Eleanor Roosevelt, and Jacqueline Kennedy. Class #7 turns to a few fashionable presidents: Presidents Richard Nixon, Barack Obama, and Donald Trump. Admittedly, the chronology doesn’t observe a straight path. It appears presidential efforts to adjust to the Overseas Emoluments Clause peaked within the 1830s—and went downhill from there. There aren’t any clear streams of authority. The historical past is a muddled puddle. Part V concludes by attempting to make sense of those classes with two ideas: practices through the Early Republic are extra probative than later-in-time practices; and traditions of defiance trump traditions of give up.
We count on to publish Half VI in 2025, and the remaining 4 elements to observe sooner or later.
