OA36: The Emoluments Clause (w/Seth Barrett Tillman) Part 2

Today’s episode is part two of our two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump.

We begin, however, with a listener question from Erik Alsman who asks whether the Supreme Court has the power to declare an amendment to the Constitution unconstitutional.  Along the way we’ll learn a little bit about the history of judicial review in the United States.

In our main segment, we conclude our interview with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law, exploring Tillman’s thesis that the Emoluments Clause does not apply to President Trump because the Presidency is not an “office… under the United States” for purposes of Constitutional analysis.  Afterwards, Thomas and Andrew break down the argument and offer their views on the issue.

Next, we air some listener comments and questions regarding the difference between a “barrister” and a “solicitor” in UK law.

Finally, we end with a brand new Thomas Takes the Bar Exam question #7 about the admissibility of a hearsay statement during a civil trial.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Show Notes & Links

  1. This is the text of Marbury v. Madison, 5 U.S. 137 (1803), in which the Supreme Court articulated — some say, invented! — the doctrine of judicial review.
  2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
  3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
  4. This 2009 Memorandum from the President’s Office of Legal Counsel assumes — without argument or citation — that the Emoluments Clause applies to the President.
  5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
  6. Zephyr Teachout’s law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
  7. Tillman’s Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
  8. Teachout’s specific response to Tillman on the Emoluments Clause is here.
  9. Tillman’s reply to Teachout can be found here.
  10. Teachout’s final reply to Tillman can be found here.

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