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If you care about the #Emoluments suits, then you must read this thread by Georgetown Law's @_John_Mikhail (and our co-author of our historians' amicus brief). He explains what happened in the 4th Cir. and what should happen.
Also: See his use of "Cafeteria Originalism." So true.
Also: See his use of "Cafeteria Originalism." So true.
For what it's worth, I think his DEC interpretation is plausible (implicit "services") but I think another explanation is that the wording of the DEC is already much less strict than the FEC. His analysis of the FEC is crucial and helpful as a contrast:
3/ I think it's sufficient to note that the Framers wrote the Foreign Emoluments Clause to be remarkably broad and strict with clear text: a ban on accepting “any…emolument…of any kind whatever."
The Domestic clause could have been written as broadly/strictly, but it wasn't.
The Domestic clause could have been written as broadly/strictly, but it wasn't.
4/ Contrasting the Domestic clause wording with the Foreign clause wording suggests a more workable common sense understanding:
Surely a president could have some necessary or de minimis benefits on top of salary: transportation, housing, protection...
Surely a president could have some necessary or de minimis benefits on top of salary: transportation, housing, protection...
5/ ...but a president could not take extra payments or benefits that did not have a nexus with the Office of the President and a public purpose.
(I personally think it was an error to permit Reagan's state pension and Obama's treasuries and State Dept book purchases, but...
(I personally think it was an error to permit Reagan's state pension and Obama's treasuries and State Dept book purchases, but...
...one can explain that Reagan's pension and Obama's treasuries vested before taking office and were not really subject to presidential influence. But I find that explanation unpersuasive. Past OLC errors do not justify judges exacerbating those errors).
7/ Well, "Any"way (see what I did there?), John and I have similar understandings of the textual and original meaning of the Foreign & Domestic clauses that would resolve the questions bothering the 4th Cir. in terms of workability. It's an honor to work with @_John_Mikhail .
