Erwin Chemerinsky

  • January 23, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member and Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The legal and constitutional problems posed by Donald Trump’s election are not hypothetical and began the moment he was inaugurated as president. Most immediately, Trump is the owner of Trump International Hotel, D.C. on the site of the Old Post Office. His ownership violates both the terms of his lease and the Emoluments Clause of the Constitution. Unfortunately, to this point, he either does not understand or does not care about the serious conflicts of interest posed by his business interests.

    The issues with regard to the D.C. hotel are obviously just the beginning of such problems arising, but they also are typical of the serious legal troubles that Trump faces. In 2012, Trump succeeded in getting the bid to redevelop the Old Post Office and signed a 60-year lease with the General Service Administration. Trump beat out proposals from hotel chains including Hilton, Hyatt and Marriott.

    Unlike many of his holdings which are owned by corporations, Trump himself is the majority owner in this hotel. The Washington Post reports that according to the financial disclosure form he filed with the Federal Election Commission, Trump owns 76.725 percent of the D.C. hotel project. Three of his children, Don Jr., Ivanka and Eric, each have 7.425 percent of the project.

    Trump’s ownership is in clear violation of the lease which contains a provision that says no U.S. official “shall be admitted to any share or part of this Lease or to any benefit that may arise therefrom.”  There is a simple reason for this: it prevents a conflict of interest that would exist if government officials are in a lease agreement with the government. As president, Trump oversees the General Services Administration and Trump, as owner of the building, is leasing property from the GSA.

  • January 9, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member and Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    From the first moments of his presidency, Donald Trump risks violating an important constitutional provision: the emoluments clause, which prevents a government official from benefiting from a foreign government. Article I, section 9, of the Constitution states:  “And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”           

    This provision was meant to restrict the ability of foreign governments to influence American office-holders, a matter of great concern to a fledgling nation. Also, it helps to prevent conflicts of interests. As Edmunds Jennings Randolph said in 1787, “This restriction is provided to prevent corruption.” The clause is meant to be much broader than a prohibition of bribery; it forbids a federal officeholder from receiving anything of value from a foreign country.         

    The emoluments clause has received virtually no attention through most of American history because few issues have arisen concerning it. But Trump’s extensive foreign business holdings mean that this clause is likely to have great significance in the months and years ahead. It is easy to imagine countless ways that Trump’s businesses can benefit from the actions of foreign governments. This is especially so because Trump has yet to act in a way that will reduce the conflicts of interest that are sure to arise because of his many businesses. In fact, Trump has declared: “I can be president of the United States and run my business 100 percent, sign checks on my business.” Trump also has said, “The law is totally on my side, meaning, the president can’t have a conflict of interest.” That, of course, is simply false, including because of the emoluments clause.           

    The emoluments clause applies to all who hold “office” in the United States government. The Office of Legal Counsel of the Department of Justice explicitly has declared that this includes the president of the United States. The clause is broad in what it prohibits. A recent report issued by the Brookings Institution, authored by Norman Eisen, Richard Painter and Laurence Tribe, explained: “The Emoluments Clause is thus doubly broad. First it picks out words that, in the 1790s, were understood to encompass any conferral of a benefit or advantage, whether through money, objects, titles, offices, or economically valuable waivers or relaxations of otherwise applicable requirements. And then, over and above the breadth of its categories, it instructs that the Clause reaches any such transaction ‘of any kind whatever.’”           

  • December 12, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    Jeff Sessions should be denied confirmation as Attorney General of the United States.  Sessions is at the far right of the political spectrum and should not be put in charge of federal civil rights and federal environmental enforcement. Although it would take political courage to stand up to the newly elected President, pressure should be placed on moderate Republicans to join Democratic Senators in denying confirmation to Sessions.

    The Civil Rights Division of the United States Department of Justice is responsible for enforcing laws prohibiting race discrimination in voting, employment, housing and policing.  Nothing in Sessions’ career offers hope that he would be other than a disaster in doing so.

    In 1986, Sessions was nominated to be a federal district court judge. He was denied confirmation by the Senate, with even a Senator from his home state of Alabama, Howell Heflin, voting against Sessions. An Assistant U.S. attorney who worked for Sessions, Thomas Figures, testified that he was repeatedly called “boy” by Sessions and was instructed by the Sessions to “be careful what you say to white folks” after Figures spoke assertively to a co-worker. Sessions has said that the NAACP and the ACLU are “un-American” and “communist-inspired” for “trying to force civil rights down the throats of people.”

    As a United States Attorney in Alabama, Sessions did nothing to enforce federal civil rights law, but he did prosecute three black activists for voter fraud, including a former aide to Martin Luther King Jr., Albert Turner. Turner had led marchers across the Edmund Pettus Bridge during the famous “Bloody Sunday” march in Selma, Alabama, on March 7, 1965. Turner and the other defendants were acquitted, but prosecutions like this one likely had a chilling effect on efforts to facilitate voting by racial minorities.

  • October 28, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.  Co-counsel for City of Miami in Bank of America v. City of Miami and Wells Fargo v. City of Miami

    On Tuesday, Nov. 8, the Supreme Court will hear oral arguments in two significant civil rights cases that raise the question of whether a city can sue to enforce the Fair Housing Act. Bank of America v. City of Miami and Wells Fargo v. City of Miami concern whether a city has standing to sue to challenge discriminatory lending practices of banks. The Court should follow well-established law in this area and allow these suits to go forward.

    The Fair Housing Act, adopted in 1968, not long after the death of Dr. Martin Luther King, Jr., broadly prohibits race discrimination in housing. As the Supreme Court noted just two years ago in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, that the law represents Congress’s response to economic and social forces that “left minority families concentrated in the center of the Nation’s cities,” where “residential segregation and unequal housing and economic conditions” resulted in “neighborhoods marked by substandard housing and general urban blight.” The Act declares the “policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”

    The Act makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race [...] or national origin.” It also forbids discrimination by “any person or other entity whose business includes engaging in residential real estate-related transactions […] in making available such a transaction, or in the terms or conditions of such a transaction, because of race […] or national origin.” Two years ago, in Texas Department of Housing and Community Affairs, the Court held that the Act prohibits practices that have a racially discriminatory impact.

  • October 17, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Constitution has very few requirements for a person to be President of the United States. The individual must be 35 years old, 14 years a resident within the United States and a “natural born citizen.” Although the meaning of this phrase is debated and was an issue concerning Ted Cruz, there is no doubt that Hillary Clinton and Donald Trump meet all of these requirements.

    Fitness to be president, then, is not about constitutional prerequisites. Rather, it is about the criteria that voters use – and should use – in evaluating the candidates. I believe that in assessing the candidates in this or any presidential election, five criteria are most important.

    First, what are the candidates’ values, views on the issues and priorities? For many voters, this is answered by whether the candidate is Republican or Democrat. In this election, there is an enormous difference between Clinton and Trump on issues ranging from immigration to tax policy to racial policy to abortion to gun control. If this were the only consideration, it is hard to imagine a person who identifies as liberal voting for Trump or one who identifies as conservative voting for Clinton.

    Second, does the candidate have the good judgment and temperament to be president? Crises will happen that require quick decisions. Challenges that cannot be anticipated at the time of the election are inevitable, perhaps a foreign war or an attack on the United States or a recession.  Although voters likely strongly disagree over which candidate will exercise better judgment or over who has the temperament better suited to be president, few would disagree as to the importance of these personality traits in choosing a Chief Executive. One benefit to the long campaign season for the presidency is that people get much more chance to get a sense of the judgment and temperament of the candidates.