Daniel Hemel (Chicago) and Leah Litman (UCI) at Take Care Blog: The Plaintiffs in CREW v. Trump Deserve To Have Their Claims Heard. From the introduction:
The Trump Justice Department has told a federal district court in New York that it lacks jurisdiction to hear the claims of plaintiffs who are challenging the President’s violations of the Emoluments Clauses in Citizens for Responsibility and Ethics in Washington v. Trump. On Friday, we and 19 other scholars of administrative law, constitutional law, and federal jurisdiction joined an amicus brief explaining why the Trump administration’s arguments miss the mark. The brief, filed by New York attorneys Andrea Likwornik Weiss and Gregory Felt, is available here, and you can see a full list of amici in the appendix. As we conclude: “Under settled Supreme Court and Second Circuit case law, the plaintiffs easily clear the constitutional and prudential hurdles to the adjudication of their substantive claims.”
Our brief only addresses whether the district court should resolve the case on the merits; other amicus briefs (from legal historians, members of Congress, former government ethics officers, and a leading scholar of public corruption) address the substance of the plaintiffs’ claims under the Emoluments Clauses. That might make the arguments in our brief seem like a sideshow to the main act, but we think they’re more than that—for two reasons. First, the Justice Department spends more than half of the argument section in its motion to dismiss urging the district court to dismiss the case on justiciability grounds. That is, the administration’s primary strategy is to try to make the case go away before the district court considers the merits. Second, if the district court reaches the merits, it will confront a mountain of historical evidence indicating that payments to President Trump’s businesses from foreign and domestic government clients fall within the meaning of the word “emolument” as the founding generation would have understood it. Thus, if Trump loses the fight over justiciability, he will have a very tough time winning the next round.
The brief's standing argument is purely doctrinal but look again at the last two sentences in the introduction: "if the district court reaches the merits, it will confront a mountain of historical evidence indicating that payments to President Trump’s businesses from foreign and domestic government clients fall within the meaning of the word 'emolument' as the founding generation would have understood it. Thus, if Trump loses the fight over justiciability, he will have a very tough time winning the next round." That's pure originalism (and indeed basically pure textualist original meaning originalism) from two conventional scholars at top law schools. Again, originalism is part of our law.
Posted at 6:05 AM