Some misgivings about the Foreign Emoluments Clause arguments

1. I’m still not convinced that the president holds an “Office … under [the United States.]” As I explained in an essay this summer, Seth Barrett Tillman’s scholarship on this question (once I really understood it) has influenced me. Tillman argues that an “Office … under [the United States]” is one created, regularized or defeasible by federal statute and therefore does not include constitutionally elected positions such as the presidency. I think Tillman’s work has shifted the burden of proof on this question to those who think otherwise.

There have been some attempts to show otherwise. The much-cited Eisen/Painter/Tribe report contains a few things on this issue, but doesn’t do the question justice. A more direct engagement comes from Mark Joseph Stern at Slate, and here is Michael Stern at Point of Order as well (no relation that I know of).

I do think that there are some good arguments that the president is covered, but on balance one major point on Tillman’s side remains unanswered: Tillman has a nearly comprehensive theory of how all of the different office-related phrases in the Constitution make sense together — as a matter of text, structure and history. For instance, the president and vice president have never received commissions for their offices, even though Article II requires the president to “Commission all the Officers of the United States.” If you do not have an explanation for that, I am not sure how confident you should be in your view of the Foreign Emoluments Clause.