Thursday, July 18, 2019

Mikhail on the Original Meaning of Emoluments Clause

John Mikhail, Georgetown University Law Center, has posted The 2018 Seegers Lecture: Emoluments and President Trump, forthcoming in the Valparaiso University Law Review:
The topic for my 2018 Seegers Lecture at Valparaiso University Law School was the original meaning of “emolument” and its implications for President Trump. In this revised and expanded version of my spoken remarks, I begin by discussing the Constitution’s Emoluments Clauses and describing the three emoluments lawsuits against the president that are currently winding their way through the federal courts. I then highlight one of the main points of contention in these lawsuits, which is the constitutional meaning of the term “emolument.” Next, I describe some of the efforts my colleagues and I have made to investigate the historical meaning of this term and explain how our research may impact the resolution of these lawsuits. Finally, I discuss the novel decision issued by a federal district court in July 2018, which held that “emolument” was a flexible term at the founding that referred to “any ‘profit,’ ‘gain,’ or ‘advantage,’” including profits from ordinary market transactions. A second federal judge recently denied the president’s motion to dismiss on the same grounds, setting the stage for what seems likely to be a pivotal issue on appeal in both cases.
--Dan Ernst