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  • Archive for the 'Law' Category

    Seth Barrett Tillman: The U.S. has a rich tradition of politicians selling memoirs/books while holding elected federal positions…

    Posted by Jonathan on 6th November 2017 (All posts by )

    On Twitter:

    The emoluments suits represent an attack by the elite, master word-smiths, who claim a monopoly on all the positions of state, against a public who, from time-to-time, elects people who don’t live in the world of words and texts. Instead, these people make things and do deals.

    Seth Barrett Tillman Tweet 20171106

    Also: Tales of the Unexplained. From Plaintiff’s Opp’n to the DOJ’s motion to dismiss in the DDC emoluments case. see page 34 n.24: /1

    Posted in History, Law, Obama, Trump | 1 Comment »

    Josh Blackman: DOJ Shifts Position: “The Government Has Not Conceded That POTUS Is Subject to the Foreign Emoluments Clause”

    Posted by Jonathan on 26th October 2017 (All posts by )

    Excerpt:

    As it stands now, there is absolutely nothing that the Plaintiffs and their Amici have submitted to the court to rebut our position that the President is not bound by the Foreign Emoluments Clause. (The Legal Historians did make such a claim, but subsequently withdrew it.) Count I concerning the Foreign Emoluments Clause must be dismissed.

    FTW

    (Via Seth)

    Posted in History, Law, Politics, Trump | No Comments »

    Seth Barrett Tillman: Good Lawyers & Good Books: My Personal Difficulties During the Recent Hamilton-Signatures Dispute

    Posted by Jonathan on 19th October 2017 (All posts by )

    These five experts did a very brave thing. They knowingly took on the cause of historical truth in spite of the fact that a social media mob had already descended on me, and in spite of the fact that they don’t (as far as I know) have any particular love for the administration. (Indeed, one of them loathes the President, but nevertheless took on this project because it was the right thing to do.) They have all written extensively on Hamilton, the Constitution, the Founding Era, and/or the Early Republic. As a personal favor to me, and if you value what has been accomplished to date, I would ask you to buy their books. If you cannot buy a book or two, please ask your local library or university library to do so. Of course, cite to their publications in your articles and elsewhere. That’s a valuable thing too. If you want honesty in our courts, in legal practice, and in the wider intellectual marketplace of ideas, then honest researchers have to be able to make a living. So if you can, help.

    Read the whole thing.

    Seth is gracious to people who helped him. He deserves great credit for his original and important scholarship, and for standing firm in the face of scurrilous personal attacks

    Posted in History, Law, Trump | 3 Comments »

    Josh Blackman and Seth Barrett Tillman: The ‘Resistance’ vs. George Washington

    Posted by Jonathan on 16th October 2017 (All posts by )

    The conclusion of Seth’s brief piece:

    But for some reason the Trump administration continues to stand by the 2009 opinion, drawn up when Mr. Obama was being awarded the Nobel Peace Prize, which came with a $1.4 million award. The Office of Legal Counsel concluded Mr. Obama could accept the money, but the opinion simply assumed the Foreign Emoluments Clause applied to the presidency. It was taken as a given with no citations either to judicial rulings or to the practices established by Washington and other founders.
     
    We have submitted friend-of-the-court briefs in New York, the District of Columbia and Maryland explaining this argument. At a minimum, the historical record should give Justice pause. But ideally the department would abandon the 2009 opinion and argue in court that the president is not governed by this clause. Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.

    (The full column is behind a pay wall but is worth reading if you have access.)

    Posted in History, Law, Trump | 7 Comments »

    Seth Barrett Tillman: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump Emoluments Case

    Posted by Jonathan on 20th September 2017 (All posts by )

    From the post:

    I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything.
     
    Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

    See also the comment by Glenn Reynolds here.

    My money’s on Seth.

    Posted in History, Law, Politics, Trump | 1 Comment »

    Seth Barrett Tillman: Karl Popper’s Falsifiability: The Foreign Emoluments Clause—A Debate Between Constitutional Eloi and Constitutional Morlocks

    Posted by Jonathan on 21st August 2017 (All posts by )

    https://ssrn.com/abstract=2996412

    Abstract
    How should we understand the Foreign Emoluments Clause? The debate has been presented to the public as a choice between idiosyncratic conservatives embracing early practice and liberals embracing intellectual reconstructions of constitutional purpose. That distinction is only the surface. The reality is that this debate is a conflict between constitutional Eloi and constitutional Morlocks.
     
    The ninety-nine percenters are our constitutional Eloi, our beautiful people, our self assured true believers who regularly assume they understand 99% of the Constitution’s original public meaning. For them, figuring out what a yet-to-be adjudicated clause means is easy: it only requires their selecting the most eligible meaning which already fits in with what they already know. And what’s the danger of that strategy—when you already know (or believe you know) 99% of what there is to know?
     
    On the other side, we have constitutional Morlocks. Morlocks are ugly, or, at least, their theories are ugly. Ugly and dangerous. Morlocks don’t believe they know 99% of what there is to know, and, not surprisingly, they don’t believe the Eloi or anyone else knows 99% either. Moreover, Morlocks believe that fitting what you don’t know into what you (think you) know permanently freezes our constitutional theories even when those theories are entirely wrong.

    (Seth adds: The PDF posted on SSRN is my amicus brief in CREW v. Trump.)

    Posted in Law, Trump | Comments Off on Seth Barrett Tillman: Karl Popper’s Falsifiability: The Foreign Emoluments Clause—A Debate Between Constitutional Eloi and Constitutional Morlocks

    Seth Barrett Tillman and Josh Blackman: Yes, Trump Can Accept Gifts

    Posted by Jonathan on 13th July 2017 (All posts by )

    The NYT elevates itself by printing an op-ed by Professors Blackman and Tillman:

    The Constitution offers several remedies for a president’s improper foreign entanglements. Congress can regulate, by statute, the receipt of presents from other nations or require the president to make disclosures about his foreign commercial arrangements. Of course, as a last resort, the president can be impeached and removed from office for bribery. However, the Foreign Emoluments Clause can provide no redress in relation to a president’s foreign entanglements either in the courts or through the impeachment process, for the simple reason that the clause does not cover the president or any other elected officials.

    The piece is a concise presentation of Seth’s argument about the Emoluments clause. Worth reading in full.

    Posted in History, Law, Trump | Comments Off on Seth Barrett Tillman and Josh Blackman: Yes, Trump Can Accept Gifts

    Seth Barrett Tillman: A Response To Jane Chong’s Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?

    Posted by Jonathan on 11th July 2017 (All posts by )

    Once this error is noticed, the rest of Chong’s analysis falls apart. Chong can point to other language in Hoyt using “emolument of office.” It is there, and she takes it to mean that “emolument” can be used in a context unrelated to “office” and other employment-like relationships. But she offers nothing akin to proof for that bold claim. It is conceivable that the Hoyt Court added “of office” language to “emolument” because it believed that there were “emoluments” which were unrelated to office, but it is also possible that the Hoyt Court thought all “emoluments” were tied to office-and-employment-type relationships. Without her initial misreading of Hoyt or any other substantial reason to believe the former, the rest of her analysis makes no sense.

    Read the full text of Seth’s post.

    Posted in Law, Politics, Trump | 5 Comments »

    Seth Barrett Tillman: A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled?

    Posted by Jonathan on 7th July 2017 (All posts by )

    In a recent post on Lawfare, Christopher Fonzone and Joshua A. Geltzer ask the question: “Is the persistent and deliberate failure to identify candidates [for appointed federal positions] not merely a sign of inept governance and deadlocked politics but also, at least in certain cases, a legal failing as well?” Their answer is basically: yes. Their position is worth pondering. I do think several of their arguments do not work, and several others are not well supported.

    Read Seth’s entire post.

    Posted in Law, Politics, Trump | 1 Comment »

    Patterns of Prejudice in Legal-Industry Hiring

    Posted by David Foster on 12th June 2017 (All posts by )

    In a study summarized here, two sociologists sent 316 law firms résumés with identical and impressive work and academic credentials, but different cues about social class. The study found that men who fit a profile identified by the researchers as “upper-class origins”…by listing hobbies like sailing and listening to classical music had a callback rate 12 times higher than those of men who signaled working-class origins, for example by mentioning country music and track and field sports.

    For comparison, the callback ratio between those profiled as “upper class men” versus “upper class women” was 4X.  Yet “lower class women” received callbacks at almost 5X the rate of “lower class men,” and at 1.6X the rate of “upper class women”!

    I’m not sure the metric used by the researchers really distinguishes economic class…there are a lot of very-well-off people who like country music…but rather some class archetype that exists in the minds of some people, evidently including those people involved in hiring at the subject law firms.  (I also wonder how many of these law firm people actually listen to classical music on any kind of basis, rather than just using it for an “our sort of person” filter)  It seems to me that regional/geographical prejudice (against southerners and rural people) and ethnic prejudice (against people of Scots-Irish background) are influencing these hiring decision-makers.

    Here are links for the abstract of the study, a presentation that summarizes the results,  and the complete paper.

    Posted in Business, Law, Management, USA | 29 Comments »

    Seth Barrett Tillman: President Trump’s Reverse Merryman

    Posted by Jonathan on 7th June 2017 (All posts by )

    Interesting thoughts from Seth:

    Trump is doing what Taney did, but he is doing it to the courts. Absent his recent tweets, Trump might very well have won*** the travel ban case: an appeal from the Fourth Circuit’s decision to uphold the trial court’s grant of a preliminary injunction against the (modified) Executive Order. But Trump does not want to merely win. He wants to win Yuuge! He does not want to squeak out a narrow win by a divided court promising more time-consuming, after-the-fact, and morale-draining oversight in the future (e.g., where such future oversight might threaten lower level Executive Branch officers with individual liability).

    Read the entire post.

    Posted in History, Law, Politics, Trump | 5 Comments »

    Seth Barrett Tillman: Have I Got A Sweet Deal For You …

    Posted by Jonathan on 28th April 2017 (All posts by )

    Are you a law student in desperate search of an interesting topic for a note? … Or, are you a fundamentally burned out and deeply disappointed legal academic tired of writing papers lacking relevance and resonance—papers which no one reads—papers which are never cited and are soon forgotten? … Because if so, have I got a sweet deal for you. You can have this idea—with no money down, and at no cost to you. But you will want to post your work-product on SSRN or otherwise publish prior to May 26, 2017.

    Read Seth’s full post.

    Will Seth get any takers on his generous offer? He should. However, since the emoluments issue is mainly a political bat that partisans use against Trump, that would lose its value if Seth’s argument against its applicability to the President became widely accepted, it seems not unlikely that the answer (at least in the short term) is no.

    Posted in Law, Politics, Trump | Comments Off on Seth Barrett Tillman: Have I Got A Sweet Deal For You …

    “George Washington was the first president to stay in the real estate business”

    Posted by Jonathan on 14th April 2017 (All posts by )

    Eugene Kontorovich:

    In today’s Wall Street Journal, I have an op-ed, “Did George Washington Take ‘Emoluments’ “? It examines the first president’s extensive and hands-on business affairs to get a better handle on the nature of constitutionally prohibited “foreign emoluments.
     
    Here’s an excerpt (article requires a subscription):
     

    Mr. Trump is not the first president to have business dealings with foreigners. That was actually George Washington, whose conduct in office has been a model for every president.
     
    By the 1790s, Washington was wealthy primarily because of real estate — renting and selling his vast holdings. As with Mr. Trump’s hotels, Washington’s renters or purchasers could include foreigners.
     
    The president received constant reports from his nephew and subsequent managers and wrote to them at least monthly… This belies the notion that the Constitution limits a president’s management of, or benefit from, his existing business ventures.
    ***
    One letter written by Washington deserves great attention in the current debate. On Dec. 12, 1793, Washington wrote to Arthur Young, an officer of the U.K. Board of Agriculture, an entity newly created and funded by Parliament at the initiative of William Pitt. The president asked for Young’s help in renting out his Mount Vernon lands to secure an income for his retirement. Not finding customers in America, he wondered if Young, with his agricultural connections, could find and organize some would-be farmers in his home country and send them over.

     
    The op-ed is drawn from a larger research project on Washington’s business interests and the prohibition on emoluments. Here, I’ll take the space to address possible limitations to this evidence. In particular, Washington insisted that his December 1793 letter to Young be kept private. (Prof. Seth Barrett Tillman has presented strong evidence of the allowance of business dealings from Washington’s public conduct in relation to the domestic emoluments clause.) He suggested that “in the opinion of others, there [may] be impropriety” in his solicitation but makes clear that he himself disagreed with that position.
     
    [. . .]

    (Via Seth.)

    Posted in History, Law, Trump | 1 Comment »

    Seth Barrett Tillman: This Is What Is Wrong With The American Judiciary

    Posted by Jonathan on 16th March 2017 (All posts by )

    Excerpt:

    For example, judges, like anyone else in any other role, want a reasonable amount of time to meet their responsibilities. So a compressed briefing and argument schedule is onerous. But all temporary restraining orders are onerous in just this way. That being so, it is difficult to credit why this all too common fact of judicial life is among the “worst conditions imaginable.” Bybee’s overstatement here is palpable.
     
    Even more problematic, Judge Bybee states that “intense public scrutiny” is another of these “worst conditions imaginable.” That is a problem. Judges have extraordinary public power. They are supposed to be scrutinized, and that includes scrutiny by the wider public. The only legitimate question is whether the scrutiny is fair, not how “intense” it is. The First Amendment does not end at the courthouse door, nor do parties’ First Amendment rights end because they find themselves dragooned into litigation.
     
    Moreover, it is wholly “out of … bounds” for an American judge to instruct litigants that their out-of-court statements are inconsistent with “effective advocacy.” Even if not specifically intended, the natural, probable, and expected effect of the dissent’s language is to chill constitutionally protected speech.* It amounts to a directive, from the court** to the lawyers before it, to instruct their clients to shut up during ongoing litigation. Bybee’s extraordinary language here demands a response from the public, the wider legal community, and the elected arms of the government.

    Read the whole thing.

    UPDATE: I Was Wrong

    Posted in Anglosphere, Civil Liberties, Civil Society, Law, Political Philosophy, Politics | 17 Comments »

    Seth Barrett Tillman: NPR’s Planet Money, President Trump, and the Foreign Emoluments Clause

    Posted by Jonathan on 12th March 2017 (All posts by )

    Noel King & Robert Smith, NPR Podcast #758, Can Trump Take the Money, NPR: Planet Money (Mar. 10, 2017), http://tinyurl.com/zg6cgte.
     

    Noel King: Presidents and other elected officials have been so paranoid that they might seem to be in violation of [the Foreign Emoluments Clause] that they do everything they can to avoid it. In fact, in the handful of times it does come up it sounds ridiculous.

    Noel King: Or if Presidents or other U.S. officials do accept gifts, they do what the [Foreign Emoluments] [C]lause says they got to do, they ask Congress for permission.

     
    Dear Noel,
     
    I listened to your full podcast. In fact, I listened to it twice. And then I delayed two days before writing you.
     
    In your podcast (at 10:20ff), you state that Presidents have done “everything they can to avoid” application of the Foreign Emoluments Clause “or … they ask Congress for permission [to keep the gift].”
     
    I find your willingness to make this claim more than a little troubling. You interviewed me for well over an hour, and you and I discussed in detail President George Washington’s diplomatic gifts: gifts which he received, acknowledged, and kept, absent any request for congressional consent.
     
    [. . .]

    Read Seth’s full post.

    Posted in History, Law, Media, Politics, Trump | 5 Comments »

    Seth Barrett Tillman on Irish Television and Radio

    Posted by Jonathan on 2nd February 2017 (All posts by )

    Sharon Ní Bheoláin & Bryan Dobson, RTÉ News: Six One (Jan. 31, 2017, 6:00 PM) (interview), http://tinyurl.com/h2yatsx ; http://tinyurl.com/hx3ndjc

    Cormac Ó hEadhra, The Late Debate, RTÉ Radio 1 (Jan. 31, 2017, 10:00 PM) (panelist), http://tinyurl.com/hfs62h2

    Pat Kenny, The Pat Kenny Show, Newstalk.com 106–108fm (Feb. 1, 2017, 9:00 AM), http://tinyurl.com/gvvqdnb

    (Link to blog post.)

    Posted in Current Events, Law, Media, Politics | 4 Comments »

    Glasnost and Perestroika: An Agenda for the Trump Administration

    Posted by David McFadden on 25th January 2017 (All posts by )

    Although President Trump is confident of his ability to deal with Vladimir Putin, he should carefully avoid emulating Putin. It would be far better for the president to look to the example of Putin’s predecessor, Mikhail Gorbachev, who transformed the Soviet Union. The first steps in the transformation were glasnost and perestroika. Glasnost, introduced in 1985, roughly means openness and was a step toward open discussion of political and social issues. Perestroika, introduced the following year, roughly means restructuring. Perestroika reduced central economic planning and allowed some private business ownership. These and later reforms resulted in a sharp increase in political freedom (from nil), which peaked in 1991. Sadly, the gains were short lived. Freedom steadily and drastically declined under Yeltsin and Putin for a complex of reasons debated at a recent symposium at the Cato Institute.

    The United States as it emerges from the Obama Administration, while not as bad off as the Soviet Union as it emerged from communism, is badly in need of both glasnost and perestroika. They should be the twin priorities of the dawning Trump Administration.

    Glasnost

    The American left has come to despise freedom of speech as much as it has traditionally despised freedom of contract. It has followed the normal progression of leftist movements toward viewing the protection of its social objectives as more important than human rights. The earliest and still worst manifestation of this trend is on college campuses. Campus speech codes began to appear in the late 1980’s and spread rapidly. Within a few years sixty percent of colleges had them. According to a report of the Foundation for Individual Rights in Education, the percentage has declined over the last nine years to forty percent.

    In 1998, Congress declared that it was the sense of Congress that “an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.” 20 U.S.C. § 1011a(a)(2)(C), (D). While the sponsors of this provision may have thought (or wanted to give the impression) that they were doing something, they did not do very much. The provision imposes no consequences on institutions that act contrary to the sense of Congress on this subject. It needs an amendment putting federal funds at stake, as anti-discrimination sections in title 20 do. Although speech codes are less common than they were, universities still do a lot to stifle “the free and open exchange of ideas.” In particular, they fail to prevent students from being intimidated, harassed, and discouraged from speaking out by other students, using increasingly violent methods.

    Intolerance of dissent, especially on a fixed dogma like climate change, is not limited to college campuses. A few years ago, a cabal of environmentalists enlisted sympathetic state attorneys general to investigate climate change dissidents. With a vague objective of finding a RICO violation, a group of twenty attorneys general (“AGs United for Clean Power”) have subpoenaed forty years of records from ExxonMobil in a retaliatory effort to find evidence that it has had information on climate change that differs from what it has said publicly. The attorney general of the Virgin Islands subpoenaed documents from academic institutions, scientists, and the Competitive Enterprise Institute, a think tank. He withdrew that subpoena after getting some pushback from a congressional committee and a lawsuit from the Competitive Enterprise Institute.

    A venerable weapon is available for the Justice Department to use against oppressive state universities and attorneys general, the Enforcement Act of 1870. The second section of the act, 18 U.S.C. § 242, makes it a crime for anyone under color of state law to deprive a person of rights, privileges, or immunities secured or protected by the Constitution. The first section of the act, 18 U.S.C. § 241, provides criminal penalties for conspiracy to injure, oppress, threaten, or intimidate any person in the enjoyment of any right secured to him by the Constitution. State action is not an element of the crime under § 241. Could not the Civil Rights Division of the Justice Department, under new leadership, go after, for example, a group of students who prevent Milo Yiannopoulos from speaking? That would be fun.

    These tools may or may not work, but they should be tried. Assaults on civil liberties should no longer be costless.

    Perestroika

    In Federalist No. 72, Hamilton said, “To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert.” This has to be the best standard now, as everyone in the Trump Administration should understand.

    Perestroika in the modern context ought to begin with reversing and undoing the Obama Administration’s impositions on the economy. Amity Shlaes, who, it should be recalled, wrote The Forgotten Man, observed that “smaller firms–the ones unready for the lawsuit, the investigation or the audit–bear the greater share of regulatory costs.” The regulatory burdens in need of repeal extend far beyond the Affordable Care Act and its progeny. Daniel Pérez of George Washington University’s Regulatory Studies Center has determined that Obama issued about 33% more “economically significant” regulations than either Bill Clinton or George W. Bush.

    It will be a challenge for the political appointees in all the departments of the federal government to sift through the regulations and begin the process of liberating the economy from the worst of them. Fortunately, litigation has already left some of the Department of Labor’s output in ruins. The Persuader Rule, which I warned about in this blog before its adoption, and the Fiduciary Rule are controversial intrusions of the Labor Department into professional relationships. Both the Persuader Rule and an anti-business revision of overtime regulations have been enjoined by federal district courts in Texas. Five different lawsuits challenging the Fiduciary Rule are pending.

    Withdrawing appeals of the rulings against the Persuader Rule and the overtime regulations is the simplest way to dispatch those rules. Other recently adopted regulations can by nullified by using the Congressional Review Act, 5 U.S.C. §§ 801-808. A joint resolution of disapproval has to be introduced within sixty days of Congress’s receipt of a report of rulemaking. The act provides an expedited procedure for a joint resolution and limits debate in the Senate. In June, President Obama vetoed a joint resolution disapproving the Fiduciary Rule.

    For that rule, and so many others, the arduous notice and comment process of the Administrative Procedure Act will be the only method of repeal. The ultimate goal should be that the Code of Federal Regulations will bear no trace that the Obama Administration ever existed and, more generally, that this time glasnost and perestroika will have a more lasting imprint.

    Posted in Big Government, Civil Liberties, Education, Law, Obama, Russia, Trump | 5 Comments »

    Seth Barrett Tillman: Opening Arguments Podcast on the Emoluments Clause, With Andrew Torrez and Thomas Smith

    Posted by Jonathan on 17th January 2017 (All posts by )

    Listen here.

    Posted in History, Law, USA | Comments Off on Seth Barrett Tillman: Opening Arguments Podcast on the Emoluments Clause, With Andrew Torrez and Thomas Smith

    Seth Barrett Tillman: This is what balanced news reporting looks like ….

    Posted by Jonathan on 13th January 2017 (All posts by )

    [Partial automated translation:]

    Tillman also pointed out that many of the public service regulations were not valid for the purpose of preventing possible conflicts of interest for elected deputies [i.e., officials], judges and not least the presidents and vice-presidents. Tillman called [i.e., made reference to] the desired independence of the persons who hold such offices. If presidents had to submit their decisions to an ethics officer, in order to rule out possible conflicts of interest, the latter would gain a very powerful position, although he [i.e., the latter] was not legitimized by any choice [of the people]. Judges and elected representatives enjoy a trust advance.

    This is worth reading in full. Recent US reporting on the Constitution’s Foreign Emoluments Clause, like much recent US reporting on any topic that can be associated with Trump, is tendentious in the extreme.

    See also: Tillman on Trump on RTE (Irish national television) (Seth appears in the video beginning around 5:50, debating a Democratic Party representative. The clip runs about 9 minutes.)

    Posted in Law, Media, Politics, Trump, Video | 1 Comment »

    Seth Barrett Tillman: Moving the Overton Window and Student Notes

    Posted by Jonathan on 6th January 2017 (All posts by )

    When you launch a new idea, its very newness puts it outside of the mainstream. Back in 2007, in an academic article, recess appointments were one of the issues du jour. I wrote that if a President made a recess appointment, a determined Senate could kill the appointment by ending its current session and immediately starting a new one (or by doing so twice, in the case of an intra-session recess appointment). See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), https://ssrn.com/abstract=956164 (the first part of a four-part Tillman-Kalt exchange).
     
    I admit that the idea was a bit novel—but it does follow from the text of the Constitution’s Recess Appointments Clause. One student note called my “innovation[] … at once both plausible and absurd ….” David Frisof, Note, Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice, 112 Mich. L. Rev. 627, 643 (2014).
     
    Two years later, in 2016, what was absurd is now standard fare.
     

    All that the [Republican majority] Senate would need to do [to terminate a purported recess appointment by President Obama of Judge Garland to the Supreme Court] is end its next session by adjourning sine die and Garland’s term would end. This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.

    Read the rest.

    Posted in Law, Politics | 2 Comments »

    Seth Barrett Tillman: Ed Kilgore, At NY Mag’s Daily Intelligencer, Asks President Obama To Use Recess Appointments: Kilgore’s Strategy Won’t Work & This Is Why

    Posted by Jonathan on 29th December 2016 (All posts by )

    Kilgore argues that the only route the Republicans would have to remove these recess appointees* would be through slow moving lawsuits which would take months, all the while leaving these appointees in place during the first year of Trump’s new administration. See Kilgore (“TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.”). Kilgore is entirely wrong. No lawsuits would be needed—just two swings of the Majority Leader’s gavel. Just two swings and the recess appointees would be out.**

    Read the rest.

    Posted in History, Law, Obama, Politics | 1 Comment »

    Seth Barrett Tillman: This Is What I Think And This Is What Other People Think Scholarship Looks Like

    Posted by Jonathan on 27th December 2016 (All posts by )

    Seth points out differences in the ways in which different legal scholars characterize arguments that challenge conventional legal wisdom. Worth reading.

    Posted in History, Law | 2 Comments »

    Seth Barrett Tillman: Room for Debate: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents

    Posted by Jonathan on 19th November 2016 (All posts by )

    Seth makes the New York Times:

    Still the Constitution does not always demand that we and our government act wisely. And that is the situation here. The Foreign Gifts Clause provides that “no person holding any office of profit or trust under them (i.e., 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.”
     
    Does the Foreign Gifts Clause and its office under the United States language apply to the presidency? There are three good reasons to believe that it does not.

    Worth reading in full.

    Posted in History, Law, Politics, Trump | Comments Off on Seth Barrett Tillman: Room for Debate: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents

    Seth Barrett Tillman: The Supreme Court Temptation

    Posted by Jonathan on 9th November 2016 (All posts by )

    Making a nomination to the Supreme Court to fill the Scalia seat is easy, and it will permit Trump to control the news cycle. Trump will be tempted to make this his first substantial order of business, but it is a temptation to which the future president ought not succumb, even if he risks losing some political popularity while delaying the eventual nomination.

    Read the rest.

    Posted in America 3.0, Elections, Law, Politics, Trump | 10 Comments »

    Outrageous But Not Surprising

    Posted by Jonathan on 6th November 2016 (All posts by )

    If it serves the cause it can’t be illegal.
     

    Posted in Crime and Punishment, Current Events, Elections, Just Unbelievable, Law, Leftism, Media, Obama, Politics, Trump, Video | 7 Comments »