The Emoluments Clauses litigation, Part 1: The Constitution’s taxonomy of officers and offices

Josh Blackman and Seth Barrett Tillman:

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 a series of coordinated lawsuits brought under the Foreign Emoluments Clause, plaintiffs contend that because “Defendant Donald J. Trump is the President of the United States of America,” he “thus holds an ‘Office of Profit or Trust’ under the United States.” Their argument certainly has an intuitive appeal: How could the presidency not qualify as an “Office of Profit or Trust under the United States” for purposes of this important anti-corruption provision? But an intuition is not an argument, and it is not evidence. Plaintiffs cannot point to a single judicial decision holding that this language in the Foreign Emoluments Clause, or the similar and more expansive phrase, “Office … under the United States” used in other constitutional provisions, applies to the president. Rather, the text and history of the Constitution, and post-ratification practice during the early republic, strongly support the counterintuitive view: The president does not hold an “Office … under the United States.”