Two snips from The Emoluments Clause: Its Text, Meaning and Application by Norman L. Eisen, Richard Painter and Laurence H. Tribe:
Never in American history has a president-elect presented more conflict of interest questions and foreign entanglements than Donald Trump. Given the vast and global scope of Trump’s business interests, many of which remain shrouded in secrecy, we cannot predict the full gamut of legal and constitutional challenges that lie ahead. But one violation, of constitutional magnitude, will run from the instant that Mr. Trump swears he will “faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”1 While holding office, Mr. Trump will receive—by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities—a steady stream of monetary and other benefits from foreign powers and their agents.
Applied to Mr. Trump’s diverse dealings, the text and purpose of the Emoluments Clause speak as one: this cannot be allowed.
The bottom line is simple: Mr. Trump stands to benefit personally, in innumerable and largely hidden ways, from decisions made every day by foreign governments and their agents. Especially given Mr. Trump’s strong personal attachment to his business, it is easy to imagine situations in which he is affected—whether subtly or overtly—by perceptions of whether foreign nations have dealt fairly with the company that he built and still owns. In those circumstances, feelings of gratitude, affection, frustration, and anger inevitably bleed out in complex and hard-to-discern ways, muddling motives in respects that elude conscious awareness or public accountability. Foreign states, attuned to that basic truth of human psychology, will no doubt tread carefully around Mr. Trump’s private interests—seeking to avoid his wrath and induce his favor. The Emoluments Clause was put in place to avoid precisely that blending of public and private interest.
Recommended. — Joe
From the abstract for The Dealmaking State: Executive Power in the Trump Administration by Steven Davidoff Solomon (Berkeley) and David T. Zaring (Penn):
The Trump administration has promised to pursue policy through deals with the private sector, not as an extraordinary response to extraordinary events, but as part and parcel of the ordinary work of government. Jobs would be onshored through a series of deals with employers. Infrastructure would be built through joint ventures where the government would fund but private parties would own and operate public assets.
We evaluate how this dealmaking state would work as a matter of law. Deals were the principal government response to the financial crisis, partly because they offered a just barely legal way around constitutional and administrative barriers to executive action. Moreover, unilateral presidential dealmaking epitomizes the presidentialism celebrated by Justice Elena Kagan, among others. But because it risks dispensing with process, and empowers the executive, we identify ways that it can be controlled through principles of transparency, rules of statutory interpretation, and policymaking best practices such as delay and equivalent treatment of similarly situated private parties.
The Hatch Act applies to all federal officers and employees—other than the President and Vice President—in the agencies, departments, bureaus, and offices of the executive branch of the federal government. It is beginning to be referenced by some pundits in the context of the culprits involved in Trump-Russia connection.
This CRS report, Hatch Act Restrictions on Federal Employees’ Political Activities in the Digital Age (April 13, 2016 R44469), “examines the history of regulation of federal employees’ partisan political activity under the Hatch Act and related federal regulations. It discusses the scope of the application of these restrictions to different categories of employees and provides a background analysis of the general restrictions currently in place. Finally, it analyzes potential issues that have arisen and interpretations that have been offered related to the application of these restrictions to new platforms of activity, for example, email, social media, and telework.’ — Joe
To comply with the Presidential Records Act, the Trump administration has agreed to archive all of Trump’s tweets including the ones he deletes or corrects. No word on how precisely the White House will do that. See Stephen Braun’s National Archives to White House: Save all Trump tweets for more. Therein Braun also reports that apparently some senior administration staff are using their private RNC email accounts. — Joe
Leading a coalition of 10 states and municipalities, New York Attorney General Eric Schneiderman petitioned the Second Circuit to review Trump’s order. The petitioners claim the Trump administration violated the federal Energy Policy and Conservation Act’s “anti-backsliding” provisions and the Administrative Procedures Act. The petition asks the appeals court to require the standards to take effect immediately.
Joining in the petition are California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Vermont and Washington state – along with Pennsylvania’s Department of Environment Protection and New York City. In a letter yesterday, the coalition warned the Department of Energy to publish the new standards within 60 days or face a federal lawsuit. — Joe
On Monday, AG Sessions announced new measures that would claw back Justice Department funds from sanctuary cities that take a more lenient approach to enforcing federal immigration laws. On Tuesday, The Trump administration’s threat to defund sanctuary cities dominated the House Judiciary Committee’s hearing. On Wednesday, the City of Seattle sued the Trump administration over his administration’s threats against sanctuaries cities in the Western District of Washington.
The lawsuit makes two main arguments about Trump’s Executive Order according to Dean Kevin R. Johnson’s (UC-Davis) Immigration Law Prof Blog post:
- The order is unconstitutional and ambiguous, and creates uncertainty around Seattle’s budget by threatening federal funding. It violates the 10th amendment by attempting to force local entities to enforce federal immigration law, and violates the Spending Clause by attempting to coerce local action through the denial of federal funds.
- The City of Seattle and our welcoming city policies do not violate federal law. The Executive Order calls for localities to cooperate with the federal government and share information. City employees are directed to cooperate with, not hinder, federal actions; however, City employees are prohibited from inquiring into immigration status. The City doesn’t prohibit information sharing, but instead limits the collection of information.
For recent CRS reports on sanctuary cities, see this LLB post. — Joe