At The Lemur, Maclain Conlin interviews Seth Barrett Tillman: An Exploration of the Original Public Meaning of the Domestic (Presidential) Emoluments Clause. From the introduction:
Maclain Conlin: Before we delve into the legal arguments at stake in Sistrunk Seeds, Inc. v. Trump, could you please provide a brief overview of its fact pattern, the litigation which preceded it, and how this dispute came before a federal court?
Seth Barrett Tillman: In Sistrunk Seeds, the state of Florida and its agencies sought to transfer land to the Trump Presidential Library Foundation for the sake of creating President Trump’s presidential library. This transfer was challenged in federal court as a violation of the Domestic Emoluments Clause. (U.S. Constitution Article II, Section 1, Clause 7.) Sistrunk is, as far as I know, the only newly filed case against President Trump based on any of the Emoluments Clauses, starting with the new Trump-47 administration. There were three lawsuits, involving claims under the Foreign and Domestic Emoluments Clauses, brought during the Trump-45 administration. One case was filed in the United States District Court for the Southern District of New York, later brought as an appeal to the U.S. Court of Appeals for the Second Circuit. A second case was filed in the United States District Court for the District of Columbia, later brought as an appeal to the U.S. Court of Appeals for the D.C. Circuit. And, the third case was filed in the United States District Court for the District of Maryland, later brought as an appeal to the U.S. Court of Appeals for the Fourth Circuit. Two of those cases went to the United States Supreme Court. The third one, which was in D.C., never reached the merits stage at the Supreme Court, as the Court denied certiorari in that case. The two cases which reached the Supreme Court basically became moot or moribund at the end of the first Trump administration; thus, like the D.C. case, the Supreme Court never opined on the merits of either of these two cases. In all three cases, the plaintiffs were denied all substantive relief; indeed, they never reached the stage where they could begin full discovery, although Maryland and the District of Columbia were permitted to serve document-preservation subpoenas on businesses owned by President Trump.
Sistrunk was not filed at the beginning of the second Trump administration. In fact, the initial complaint was not filed until May 2026, over a year after President Trump’s second inauguration. Plaintiffs took their time, and perhaps the reason that they took their time is they were waiting for facts that they thought were most helpful. Part of the basis of this suit is that the transfer of property by various Florida government entities to Trump-affiliated entities is a problem under Florida law as they see it, not just under the federal Constitution. I do not have a view on Florida law myself. As I understand it, the claim under Florida law is being litigated in a separate lawsuit in Florida’s state courts, but Florida law is not my bailiwick.
And from Professor Tillman on the original meaning and purpose of the domestic emoluments clause:
The Domestic Emoluments Clause states that, “The President shall, at stated Times, receive for his Services, a Compensation which shall neither be [i]ncreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” However, we do not usually think that this constitutional provision’s prohibiting the President from receiving additional official compensation also restricts him from all sorts of things private citizens can do, including compensation related to private transactions. The first several Presidents, including John Adams, earned income beyond their federal presidential salaries, from their plantations and farms, and no one batted an eye thinking it was unconstitutional or in any way illegal. As far as we can tell, no one thought that a President’s participating in private commercial life was per se unconstitutional. The Domestic Emoluments Clause imposes restrictions on what a President may receive, but the clause does not categorically prohibit a President from receiving any and all income beyond that which has been prescribed by Congress for the President.
The original purpose of the Domestic Emoluments Clause is a matter of some debate, and we do not have a lot of early commentary or discussion from either the federal convention or from the state ratifying conventions or even from the newspapers at the time. And that is probably because most people thought they understood it and they did not have to spend a lot of time talking about something that was not really in dispute, and because they thought it had a very limited function. This happens a great deal with discussions of early constitutional provisions. People take the time to discuss things that are unclear as opposed to things that everyone readily agrees upon. My understanding of the Domestic Emoluments Clause—which really is a misnomer; it should be called the “Presidential Emoluments Clause,” because it only applies to the President as opposed to a wider class of domestic officials and officers—is that it is designed to ensure that when the President holds both state and federal positions, he cannot draw a salary in connection with the state position. There are some bars in the Federal Constitution that restrict a person to only having one official position, such as the Incompatibility Clause which applies to members of Congress. Under that clause, congressmen cannot have executive or judicial branch offices while they are members of Congress. But there are lots of joint office holdings that are not forbidden, or at least not expressly forbidden. There is nothing in the U.S. Constitution that forbids any federal officer, or any federal elected official, from holding a separate state office. As a matter of fact, in the first Congress, there was one congressman who was also a member in his state legislature because there is nothing that bars that. Some states bar it, but that is a matter of state statutory law and state constitutional law. Similarly, there is nothing in the Federal Constitution that bars someone in the executive branch from also being a judge. That basically happened with John Jay, who was both the Chief Justice and an ambassador—or functional ambassador—at the same time. The way I imagine the Domestic Emoluments Clause working is in a situation like this: Imagine a state governor or a high state official is elected President. He cannot delay taking the presidency because the electorate called on him to fill that position, but it might be that he cannot depart from the governorship either because of a statewide emergency. The Federal Constitution wants to guarantee all the states even-handed treatment, so he is barred from drawing on his state compensation in connection with his state position while he holds the presidency. That is what I think the clause is for. He could delay taking the presidency. Or, he could give up the state government position. But if he is going to hold both positions concurrently, he is barred from drawing the salary or compensation associated with the state position. And I say that because I understand an emolument to be the compensation that flows from a government position, office, or employment, as opposed to just any benefit that one could draw, including those in connection with private commercial transactions. And that is how the Supreme Court defined “emolument,” albeit, that construction of the term arose in connection with a matter of statutory interpretation in a case called Hoyt v. United States (1850).
So, for example, if a state decided to give a President a gift, that would be odd, but that result is not squarely prohibited by the Domestic Emoluments Clause. If the state decided to just transfer the property, I would say that is not an emolument. Now, it might be a bad thing from the state’s point of view. It might be a bad thing from the point of view of good governance at the federal level, but I do not think it is barred by the Domestic Emoluments Clause. And there is no claim here that President Trump holds anything like an official position, or office, or employment with the Florida government.
Posted at 1:24 AM