ACSBlog

  • January 24, 2017
    Guest Post

    by Joshua Matz, former law clerk to Justice Anthony M. Kennedy of the United States Supreme Court, and Laurence H. Tribe, Carl M. Loeb University Professor at Harvard Law School

    Until recently, you probably did not know (or care) what an “emolument” is. Many people, including many lawyers, had never heard that archaic term before. Those were the good old days. Now, thanks to President Donald J. Trump, the word “emolument” is all the rage. Need proof?  Last week, it topped the charts on Merriam-Webster.com. 

    As far as words go, that is a big deal. 

    This newfound popular interest reflects an emerging consensus that Trump is violating the Constitution’s foreign emoluments clause. That clause bars any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” (absent congressional consent). As Trump’s lawyers have acknowledged (and rightly so), the president holds an “Office of Profit or Trust” and is subject to this restriction.

    The nature of Trump’s violation is straightforward: Because of his ownership stake in the Trump Organization, Trump’s private financial interests are intertwined with a business empire subject to many possible burdens and benefits abroad. None of Trump’s “solutions” fixes this problem.  As a result, in his dealings with foreign powers, Trump may be guided not only by the interests of the United States, but also by those of the business that bears his name—unless he totally stops caring about his money (we are not holding our breath). It is the purpose of the foreign emoluments clause to eliminate precisely this kind of blurred loyalty.

  • January 24, 2017
    Guest Post

    by James P. Rooney, Administrative Law Judge

    On Jan. 20, 2017, Donald J. Trump was inaugurated as the 45th president of the United States. He became the second president this century who won the electoral vote but not the popular vote. Continuing to tolerate a system of election to our one national office in which the winner of the popular vote loses the election time and again will not be good for our democracy. Mr. Trump agrees. In his post-election interview with 60 Minutes, he stood by his comment in 2012 that the Electoral College is a “disaster for a democracy.” He said, “I'm not gonna change my mind just because I won. But, I would rather see it where you went with simple votes. You know, you get 100 million votes, somebody else gets 90 million votes, and you win. There's a reason for doing this because it brings all the states into play.”

    It is this last point that is key to the major problem with the Electoral College even when the popular and electoral votes do not diverge. Although the Constitution does not tell states how to choose electors, 48 of the 50 states have chosen a winner-take-all system in which whoever wins that state’s popular vote gets all the state’s electors. The major consequence of this system is that presidential candidates focus all their attention on swing states and none on the vast majority of states where it is clear which party’s candidate will win the statewide election. And as unconventional as this presidential election was, it was utterly conventional in its focus on swing states. Eighty-seven percent of the campaign events in the general election were held in just ten states: Florida, North Carolina, Pennsylvania, Ohio, Virginia, Michigan, New Hampshire, Iowa, Colorado and Nevada.

  • January 23, 2017

    by Caroline Fredrickson

    On Jan. 23 – President Donald Trump’s self-proclaimed day one, it is worth remembering the first words of the Constitution

    We, the people, are the "historic movement, the likes of which the world has never seen." Pictures of Women's Marches all over the world prove it. 

    The majority of Americans did not vote for Trump. Historically low approval ratings and small inaugural crowds show Trump does not have a mandate for his agenda.

    So now we must get to work. Movements need consistent, sustained people power. Here are five ways to fuel the movement:

    -Join many groups - start with ACS

    -Run for office or support champions of your favorite issues in statehouses and Congress

    -Call your members of Congress and tell them what you think about Trump's cabinet picks - start with the attorney general nominee, Sen. Jeff Sessions (R-Ala.)

    -Fight fake news by forming a rapid response group with your family, friends and colleagues

    -Volunteer for ACS projects

    -Research

    -Pro bono work

    -Constitution in the Classroom

    -Mentor

    -Write

    If you are interested in volunteering for ACS projects, email us at lcemails@acslaw.org.

    Like anything worthwhile, our movement is an everyday commitment. We have so much at stake.

  • January 23, 2017
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    I.        Immigration Enforcement 

    Count on the nascent Trump administration to involve law enforcement in the enforcement of federal immigration laws. And too often the law enforcement agencies that can inflict the most damage on the relationships between immigrant communities and their police will be the first to embrace a role in the enforcement of immigration laws, a role that is particularly unsuitable for the police in the twenty-first century United States. 

    In Massachusetts, the bluest of the blue states, a county sheriff recently offered to send inmates at the county jail to the Mexican border to help build the Trumpian “wall.” Thankfully sheriffs in Massachusetts are jailers and civil process servers and not police, but the suggestion, though clearly illegal and unconstitutional, that some law enforcement officials welcome a potential role in the enforcement of federal immigration laws is worrisome. There are over 18,000 law enforcement agencies in the United States: local, county, state, and special jurisdiction, and these departments may present an attractive “force multiplier” in the enforcement of federal immigration laws should the Trump administration seek to broaden the imprint of ICE Enforcement and Removal Operations (ERO). The resurrection of the moribund “287 (g)” program or some similar collaborative model for the joint federal-local-state-county enforcement of immigration laws would be catastrophic for immigrant communities.

    The police are typically unaware that entry into the United States without the appropriate documentation authorizing such entry, while against the law, is a civil infraction and not a criminal violation (unless the individual has been previously deported). Too many of the police are also unaware that they do not have the authority to ask community residents with whom they come into contact for immigration documents (and this is a common practice in immigrant communities). In the eyes of many of the police, undocumented immigrants are criminals who have no rights under the Constitution and who should be arrested and immediately deported.

  • 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.