Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal Counsel. See Memorandum to the Honorable Kenneth A. Lazarus, Assoc. Counsel to the President, re: “Applicability of 3 C.F.R. Part 100 to the President and Vice President” (Dec. 19. 1974). Professors Seth Barrett Tillman and Josh Blackman have suggested that this memorandum is relevant to the debate, presumably in providing support for Tillman’s position that the president is not covered by the Foreign Emoluments Clause. Indeed, Tillman here cites the 1974 memorandum as contrary authority to a subsequent OLC opinion that expressly acknowledges that the Clause applies to the president.

For those unfamiliar with the background, Professor Tillman has long maintained that the president (and vice president) do not hold (1) “any Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause (art. I, § 3, cl. 7); (2) “any Office under the United States” within the meaning of the Incompatibility Clause (art. I, § 6, cl. 2); (3) “an Office of Trust or Profit under the United States” within the meaning of the Elector Incompatibility Clause (art. II, § 1, cl. 2); and, of course, (4) “any Office of Profit or Trust under [the United States]” within the meaning of the aforementioned Foreign Emoluments Clause.

It is fair to say that these claims were greeted with a large degree of skepticism by this blog. See, e.g., here (Disqualification Clause); here (Incompatibility Clause); and here (Foreign Emoluments Clause). At the time, however, the stakes were low with regard to a debate of primarily academic interest.

The stakes are higher now. The president-elect has received some criticism for refusing to divest himself of a large portfolio of international business interests. Among other things, this situation is said to create a high probability or virtual certainty (depending on whom you ask) that Mr. Trump will be in violation of the Foreign Emoluments Clause once he assumes the presidency. This thesis, of course, assumes the Clause applies to the president, and therefore it becomes a matter of some importance to know whether there is anything to Professor Tillman’s position.

Several respected legal scholars are at least open to Tillman’s argument. For example, in July 2016 William Baude of the University of Chicago Law School published a brief review of Tillman’s work with respect to the “different office-related phrases” in the Constitution, which includes not only its usage of “office” but also its (quite distinct, I will argue) use of the term “officer,” as in “Officers of the United States.” Without drawing a sharp distinction between Tillman’s analyses of the terms “office” and “officer,” Professor Baude praised Tillman’s work and concluded: “That is not to say that [Tillman’s] position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof.”

One scholar who has actually endorsed Tillman’s position is Professor Blackman, who wrote in November 2016 that he had “long been persuaded” by Tillman’s research that the president “is not a ‘person holding any office of profit or trust’” within the meaning of constitutional provisions such as the Incompatibility and Foreign Emolument Clauses. In a later post, however, Blackman appeared to be somewhat less definitive with regard to whether the president is covered by the Foreign Emoluments Clause. Noting the “uncertainty of this issue,” Blackman stated: “This is a close question, without any judicial precedent, [but] Tillman has strong arguments based on text and history.”

Which brings us to the 1974 memorandum, written by Assistant Attorney General Scalia to address the question of whether an ethics-related regulation and executive order were intended to apply to the president and vice president. The future Supreme Court Justice answered the question in the negative, and he based his conclusion in part on the Constitution’s use of the term “officer”:

     The Order (Section 705) defines “agency” and “employee” in much the same way as 3 C.F.R. Part 100, so that it could be thought to consider the President and Vice President “officers” of an “executive department.” However, when the word “officer” is used in the Constitution, it invariably refers to someone other than the President or Vice President. Article II, Section 1, clause 6 (Congress may by law determine what Officer shall act as President if there be neither President nor Vice President); Article II, Section 2, clause 1 (President may require opinions from the principal Officer in each executive department); Article II, Section 2, clause 2 (President appoints all Officers of the United States except inferior Officers, the appointment of whom Congress may vest elsewhere); Article II, Section 3 (President commissions “all the Officers of the United States”); Article II, Section 4 (the President, Vice President, and all civil Officers may be removed by impeachment); Article II [sic], clause 3 (all executive and judicial Officers shall be bound by oath to support the Constitution, contrasted with the explicit oath prescribed for the President, in Article III [sic], Section 1, clause 8); Article I, Section 8, clause 18 (Congress has power to make all laws necessary and proper for carrying into execution all powers vested by the Constitution “in any Department or Officer thereof;” inasmuch as Congress cannot legislate in those areas where the President is given exclusive power, e.g., the pardoning power, this phrase must refer to executive departments and the Officers therein, but not to the President.) . . . . This use of the word “officer” in the Constitution has led the Department of Justice consistently to interpret the word in other documents as not including the President or Vice President unless otherwise specifically stated.

(emphasis in original).

Scalia implies here, though he does not quite say, that the Justice Department had previously reached the conclusion that the term “officer” in the Constitution “invariably refers to someone other than the President or Vice President.” No citation is provided, and I am not sure to what he is referring. (I asked Tillman, who didn’t know either).

On the substance of Scalia’s position, there is a strong argument that the term “Officers of the United States” as used in Article II does not include the president or vice president. Article II provides that all “Officers of the United States” are to be appointed, but the president and vice president are elected, not appointed. Article II also provides that the president shall commission “all the officers of the United States,” but the president does not commission himself or the vice president.

On the other hand, the inference that the president is excluded from “all executive and judicial Officers . . . of the United States” in the Oath Clause (art. VI, cl. 3) because the Constitution elsewhere provides an explicit oath for the president, art. II, § 1, cl. 8, strikes me as extremely weak. There is no inconsistency in reading both clauses as including the president. To the contrary, the fact that the Constitution does not elsewhere provide an oath for the vice president is a much stronger reason for rejecting the theory (endorsed by both Scalia and Tillman) that the president and vice president are not “officers” within the meaning of the Oath Clause.

Even more problematic is Scalia’s contention that the Necessary and Proper Clause’s reference to “the Government of the United States, or  . . . any Department or Officer thereof” must exclude the president. He reasons that “inasmuch as Congress cannot legislate in those areas where the President is given exclusive power, e.g., the pardoning power, this phrase must refer to executive departments and the Officers therein, but not to the President.” The premise of this argument seems to be that Congress is forbidden from enacting any law that might be “necessary and proper for carrying into Execution” an exclusive power of the president. It is not obvious to me that this premise is correct (e.g., cannot Congress establish an office of pardon attorney in the Justice Department?). Even if it is, though, this doesn’t explain why the Necessary and Proper Clause wouldn’t apply to the president’s non-exclusive powers or to Congress providing statutory authorizations of various kinds to the president. See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). All in all, this argument makes little sense to me.

Moreover, I am not sure anyone else has ever expressed this view of the Necessary and Proper Clause. According to Professor Steven Calabresi (a former Scalia clerk, no less), “the Necessary and Proper Clause . . . refers to the President and to all other federal executive and judicial figures as ‘Officers’ of the ‘Government of the United States.’ Everyone for 219 years has thought that the Necessary and Proper Clause uses these words to refer to the President.” Steven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. 134, 142 (2008). Indeed, even Tillman himself apparently does not agree with Scalia’s reading of the Necessary and Proper Clause in this respect. See Seth Barrett Tillman, Why Our Next President May Keep His or her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke Journal of Constitutional Law & Public Policy 107, 118 n. 28 (2009).

(I should note here that we do not know the extent to which the language of the 1974 memorandum truly reflected Scalia’s views. The basic analysis of the memo is sound enough, but much of the quoted language relating to constitutional “officers” seems poorly thought out and rather unnecessary. Perhaps this was sloppy work on the part of the junior lawyer who presumably drafted it. Or perhaps OLC had another reason for including this language. The memorandum is dated just a few months after President Ford’s pardon of Richard Nixon, which could explain the seemingly gratuitous reference to the pardon power.)

All of which leaves me wondering whether the 1974 memorandum provides Tillman much support, even as to the reading of the constitutional terms “Officer” or “Officer of the United States.” It certainly provides no support for Tillman’s position on the Foreign Emoluments Clause. Not only does the memorandum make no mention of the Clause, but nowhere in it does Scalia dispute that the president holds an “Office,” an “Office under the United States,” or an “Office of Profit or Trust under the United States” within the meaning of any constitutional provision. The memorandum notes that the president “is of course the head of the White House office” without suggesting any constitutional issue with regard to the president holding or heading an office.

To be sure, one might naturally assume a textual connection between being an “officer” and holding an “office.” But here’s the thing. The Constitution expressly and repeatedly states that the president holds an “office.” See, e.g., art. II, § 1, cl. 1 (The president “shall hold his Office during the Term of four years . . . .”); see also art. II, § 1, cl. 8; art. II, § 4. So if we know that the presidency is an “office,” the fact that the president may not be an “officer” for some constitutional purposes (which I think is true) or even for all constitutional purposes (which I think is not true) tells us precisely nothing about whether the president holds an “office” within the meaning of the Foreign Emoluments Clause or any other constitutional provision.

In a future post I will summarize my reasons for concluding that the president is indeed included within the scope of the Foreign Emoluments Clause. For now, suffice to say that Scalia’s 1974 memorandum provides no support for the proposition that the president is excluded.

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