The Emoluments Clause Does Not Apply to the President: Frivolous Democratic Suits

Stephen Kershnar

The Left Sues Trump Over the Emoluments Clause

Dunkirk-Fredonia Observer

June 18, 2017

Various leftist groups and politicians have recently sued Donald Trump over the Emoluments Clause of the Constitution. An emolument can take the form of a gift or compensation. The Article I Section 9 Emoluments Clause prohibits the receipt of an emolument. It states, “No Title of Nobility shall be granted by the United States; and no person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State.”  The issue is whether the Clause applies to the President.

There is no judicial precedent interpreting the clause. Nor has the Supreme Court addressed it. The clause differs from the ban on bribery because the Emolument Clause only concerns gifts from foreign governments rather than from public or private parties in general. The Emoluments Clause also differs from the legal ban on conflicts of interest because that ban explicitly exempts the President.

 

The three lawsuits were brought by a left-wing activist group, two Democratic attorneys general from the District of Columbia and Maryland, and nearly 200 Democratic members of Congress. The members of Congress asked the court to declare that Trump would violate the Constitution were he to accept a benefit banned by the clause. They also asked that the court order Trump not to take any gifts or compensation from a foreign government without Congress’ approval.

            Sadly for the Democrats, the Emoluments Clause does not apply to the President. Law professor Seth Tillman provides three arguments for this assumption. First, he argues that “office” in the Emoluments Clause does not include the President. Rather, he notes, it refers to commissioned rather than elected officials. When a provision applies to elected officials, he points out, it explicitly names them. Consider, for example, the Impeachment Clause.

            Second, Tillman argues that in understanding the Constitution special consideration is due to the precedent set by George Washington’s administration, especially with regard to presidential powers. Washington accepted gifts from the French government without any Congressional consent or even a record of congressmen criticizing his doing so. If the generation that wrote and ratified the Constitution didn’t think the Emolument Clause applied to the President, it probably doesn’t apply to him.

            Third, during the Washington administration, Tillman points out, the Senate ordered the Secretary of the Treasury, Alexander Hamilton, to list people who held office under the United States and their salaries. Hamilton’s list did not include elected officials, such as the President.

University of Chicago law professor Will Baude argues that Tillman’s interpretation of “office” also makes sense of the Constitution’s structure and text. Under Article II, Baude argues, the President is required to “Commission all Officers of the United States.” This would make little sense if he were an officer. Baude also argues that there are two other emolument clauses in the Constitution that limit salary increases for the President and members of Congress. Both clauses mention these positions by name rather than including them via the words “office” or “officer.”

Even if the Emolument Clause were to apply to the President, it does not provide a remedy. The Clause does not make accepting an emolument a crime. Even if it made it a crime, the President is probably not subject to the federal criminal law because he is the boss of the Justice Department and Attorney General. It is unclear whether they could charge him without his permission. It is unlikely that he would give permission. Even if he were to give permission for them to charge him and, as a result, he were convicted of a crime, he could still pardon himself. Even if he permitted prosecutors to convict him and did not pardon himself, it is unclear whether he would be imprisoned given that he is the boss of the federal prison system. The Justice Department agrees with this. It claims that a sitting President cannot be indicted for a crime.

            The President is also not subject to Emoluments Clause because no one has standing to sue under it. To have standing, you have to have a concrete and particular injury. It is doubtful that a private citizen could meet this condition.

If the Emolument Clause had a remedy, it would be the President not being reelected or being impeached and convicted. Impeachment, though, requires serious corruption or abuse of power, criminal activity, or violating federal law in such a way as to trespass onto Congressional power. Atrocious behavior can meet these conditions regardless of whether it violates the Emolument Clause. Consider, for example, President Bill Clinton’s perjury and obstruction of justice.  

            The Emoluments Clause is also painfully vague. On a common interpretation, an emolument for a businessperson can take the form of payment for more than fair market value. There is an issue as to whether this would be met when a foreign government gives a gift or compensation to a President’s corporation, foundation, or adult children. Similarly, there is an issue as to whether the condition is met were the gift or compensation given by a private corporation partly owned by a foreign government or private citizen with close ties to a government. These are the conditions under which the clause would need to be applied.

In short, the Emoluments Clause does not apply to the President and would be irrelevant if it did. President Trump’s far-reaching businesses and his refusal to put them in a blind trust thus do not violate either Emoluments Clause or law banning conflicts of interest.

The Democratic lawsuits are thus frivolous and should be thrown out. Still, there is something funny about watching Democratic members of Congress get upset over the Emolument Clause when they couldn’t care less about the Constitution and were silent over Obama administration’s rampant lawbreaking (for example, the IRS’s abusing taxpayer groups, blatantly unconstitutional amnesties for illegal aliens, and war on Libya). 

Yellow Fever and Anti-Racist Hysteria: A Theoretical Problem

Stephen Kershnar

Yellow Fever and Racism

Dunkirk-Fredonia Observer

June 8, 2017

            Recently, students forcibly took over Evergreen State College claiming that it was awash in racism. Students at University of California at Berkeley, Middlebury College, and Claremont McKenna College prevented public intellectuals Milo Yiannopoulis, Charles Murray, and Heather Mac Donald from speaking because of their alleged racism. A couple of years ago, Yale was torn by protests over racial and ethnic appropriation of Halloween costumes and anti-racist protesters at the University of Missouri pressured the chancellor and president into resigning. At Dartmouth, Black Lives Matter protesters stormed the library and aggressively confronted white students who were quietly studying.

            Structuring the racial issues in this country solely in terms of black and white misses subtle ways in which responses to race are complex and, in some cases, rational. Once instance of such a complex case it that of racial preferences in sex and dating. One example of this is the purported preference some black men have for white women.

Another such case, and the one I focus on here, is yellow fever. This is the preference among some men for sex, dating, and marriage for Asians, in particular for Asian women. This preference gives Asian women a competitive advantage in dating and marriage. It disadvantages competitors, especially, black and Hispanic women. This advantage can be in a study by Cardiff University’s Michael Lewis that found that Asian women are seen as more attractive than women of other races. The preference is reinforced by the stereotype of Asians as having a strong work ethic, being family-oriented, and valuing education. These preferences give Asian women a competitive advantage.

            The problem for the anti-racists is that yellow fever appears to benefit one group over another and yet is unobjectionable. In support of this claim, philosopher Raja Halwani argues that there is nothing wrong (or bad) about normal heterosexual preferences (consider, for example, preference for women who are thin, feminine, and of normal height) and these preferences are arbitrary. Preference for Asian women is no different than these other preferences. Hence, there is nothing wrong about preferring Asian women. 

            Feminists reject the idea that it is wrong (or bad) to have normal sexual preferences. They argue that preference of thinness (as opposed to fatness) or femininity (as opposed masculinity) in women oppresses them because it judges them on feminine beauty rather than intellect and ability. Even if this were true, it is not clear that an individual or even a population can control their sexual preferences and it is not wrong to think a certain way if you can’t avoid it. This is especially true if some preferences (for example, for femininity) are deeply embedded in the culture or genetically linked. Also, it is unclear whether the preferences that would replace those for thin and feminine women would make women better off. It is unclear whether women would be better off if men preferred chubby women.

     

            Yale University’s Robin Zheng argues that unlike normal heterosexual preference for women who are thin, feminine, and of normal height, preference for Asian women is objectionable because it harms Asian women. It harms them, she argues, because they must spend time and energy considering whether men like them for who they are or their exotic features. It also reinforces racial stereotypes, specifically that Asian women are hyper-sexual and submissive, and these stereotypes are problematic.

            Zheng’s argument is odd. Normally, people want to be preferred. Women go through great lengths to be sexy, in shape, and educated in order to get an advantage in dating and marriage markets. If it is a competitive advantage to be preferred because of one’s race, then it is hard to see why the preference would be bad for the preferred group. By analogy, thin women enjoy the significant advantage in dating that being thin provides.

Also, by analogy, if women in the Ivy League had Hebrew fever (preference for Jewish men) and, as a result, Jewish men got more and better dates than they would otherwise get, they would, and should, welcome this preference. Zheng doesn’t focus on the degree to which yellow fever disadvantages Asian women’s competitors, especially black and Hispanic women. This, if anything, is what is troubling about it.

            Contrary to the widespread perception, though, it is not clear that that yellow fever is widespread. A study by Boston University’s Raymond Fisman and his colleagues found that Asian women discriminate against black and Hispanic men, but did not discriminate between Asian and white men. On his study, white men didn’t prefer Asian women. If this study captures the more general pattern, and it is only one study, then it is Asian women’s preferences that account for the frequency of white male and Asian women couples.

            The problem is that if preferences in dating and marriage markets are neither wrong nor bad, it is hard to see why the same is not true of the economic and friendship markets. That is, if people prefer to be around some groups rather than others, whether at work or play, it is hard to see why that’s wrong. Nor does it become wrong if it rests on a view of who’s sexy or would make a good spouse. 

In particular, there is some reason to believe that women of every race prefer to stick to their own kind (see Anita in West Side Story) with the exception of Asian women. This sort of preference is likely to have a noticeable effect on people’s lives. It shapes whom they are friends with, date, marry, and work with. Women’s in-group preferences don’t intuitively seem wrong or bad. This is a problem for the anti-racist crowd in that it suggests that race-based preferences might be neutral, despite its tendency to segregate people and produce racial disparities. This finding does not fit cleanly into the mindless race-focused rage that is roaring through campuses.