Josh Blackman notes that President-Elect Trump's lawyers have released an extensive analysis of the emoluments clause issue. The short version is that they accept that the clause is applicable to the President but deny that "emolument" includes ordinary business dealings. It is expressly originalist (and Scalian) in its foundation:
The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text. [Citing Scalia & Garner, Reading Law and Scalia, Originalism: The Lesser Evil]. Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a “present, Emolument, Office, or Title.”
Professor Blackman has much more extensive discussion, including some methodological reservations.
I have an additional quibble: the letter begins, "From President Washington to Vice President Rockefeller to President-Elect Trump, many of this Nation’s leaders have been extraordinarily successful businessmen." I yield to no one in my admiration for George Washington, and I agree he was a businessman, but I think it perhaps a stretch to call him "extraordinarily successful" in that aspect of his life.
RELATED: At Volokh Conspiracy, Will Baude: Some misgivings about the Foreign Emoluments Clause arguments. Among others:
I’m still not convinced that the president holds an “Office … under [the United States.]”
As I explained in an essay this summer, Seth Barrett Tillman’s scholarship on this question (once I really understood it) has influenced me. Tillman argues that an “Office … under [the United States]” is one created, regularized or defeasible by federal statute and therefore does not include constitutionally elected positions such as the presidency. I think Tillman’s work has shifted the burden of proof on this question to those who think otherwise.
And later:
Even if you are satisfied that Trump is likely to violate one of the emoluments clauses, the arguments are technical, and the answers are not completely obvious. To argue against Trump’s behavior on those grounds is, I fear, to get sucked into a trap where the arguments are unlikely to resonate or accomplish their aims.
FURTHER: David Weisberg has updated his SSRN article The Foreign Emoluments Clause: Will Pres. Trump Be in Violation by Virtue of Taking the Oath? – in particular, with a response from Professor Tribe in footnote 11.
Posted at 6:37 AM