September 27, 2017

JOSH BLACKMAN & SETH BARRETT TILLMAN: The Emoluments Clauses litigation, part 2 — the practices of the early presidents, the first Congress and Alexander Hamilton.

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 our first post, we showed that the drafting convention “Office … under the United States” covers appointed, and not elected, positions within the federal government. As a result, the President is not subject to the Foreign Emoluments Clause.

This post, based on amicus briefs we submitted to the District Courts for the Southern District of New York and the District of Columbia, will explain how the practices of presidents during the early republic, the first Congress, and Alexander Hamilton, while serving as America’s first secretary of the treasury, confirm that they understood that the president was not subject to the Foreign Emoluments Clause and its “Office … under the United States” language.

They were shamefully mobbed by poorly informed legal historians. But they did not back down, and received an apology.

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