Joshua Matz

  • April 18, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.

    by Joshua Matz, Associate,  Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    There has just been a major development in the emolument clause litigation: CREW, which famously filed the first emoluments case on Trump’s first full day in office, has amended its complaint. In addition to bringing two new plaintiffs into the litigation—each with distinct and compelling theories of injury—CREW has produced a formidable and detailed list of Trump’s constitutional violations. 

    There is a lot to say about this development. For now, I will focus on a recent article with leaked information about how Trump’s lawyers might seek to defend him.

    Last week, the New York Times reported the DOJ will argue that “the court has no authority under the separation of powers doctrine to intervene; that power lies with Congress.” This suggests that Trump’s lawyers will rely on the so-called “political question doctrine,” which, in very limited circumstances, deprives federal courts of the power to decide constitutional questions.

    Such reliance would be grossly misplaced. Applying the political question doctrine here would require the court to rewrite and invert the plain text of the Foreign Emoluments Clause. It would be nothing short of absurd to deem the Foreign Emoluments Clause a “political question.” Indeed, as I will show in this post, that conclusion would require some heavy editing of the Clause:

    [N]o Any Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, may accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, unless Congress is informed and thereafter denies consent.

    (I will not address the Domestic Emoluments Clause, for reasons that will soon become apparent.)

  • March 16, 2017
    Guest Post

    by Joshua Matz, Publisher of Take Care

    Since Donald J. Trump took office, we have all been drinking from a fire hose trying to keep up with the latest legal news. He has besieged the rule of law in so many ways at once that the American public can barely grasp the latest havoc before Trump causes yet another disaster. We have even had to learn new words—like “emoluments”—to capture all this illegality.

    As a result, the legal left has struggled to keep pace with the president, and there is a pressing need for new resources and institutions to protect our legal order.

    Rising to the occasion, over fifty of the nation’s foremost legal scholars have now joined together to ensure that the president “shall take Care that the Laws be faithfully executed.”  At Take Care (@ShallTakeCare), they will cover the major legal issues of our time, from immigration and healthcare to conflicts of interest, civil rights, free speech and more. Contributors include Larry Tribe, Walter Dellinger, Marty Lederman, Dawn Johnsen, Daniel Tokaji, Douglas NeJaime, Leah Litman and Jamal Greene, among many others. 

    In addition, Take Care has created—and will continue to create—resources useful to lawyers, journalists, policymakers and citizens. To start, it offers a daily update, which pulls together legal analyses of Trump Administration policies from around the web. Take Care also hosts dozens of topic pages, which will evolve into curated archives of first-rate legal commentary. The end result will be a veritable arsenal of progressive ideas and insights.

  • February 22, 2017
    Guest Post

    This piece originally appeared on The Guardian

    by Joshua Matz, Associate at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    It is not every day that a federal court cites Ex parte Endo, the 1944 Supreme Court decision which invalidated the detention of loyal, law-abiding Japanese-Americans during the Second World War. But these are not ordinary times.

    Shortly after taking office, President Donald J. Trump unleashed pandemonium by suddenly announcing a temporary ban on travel into the United States from seven Muslim-majority nations, in addition to a temporary ban on all refugees. Experts cried foul, warning that Trump’s order violated the constitution and made America less safe.

    Amid vigils and protests, federal courts issued a flurry of rulings against Trump’s order. The broadest ruling was issued by Judge James Robart, who Trump promptly denounced on Twitter.

    On Feb. 7, the U.S. Court of Appeals for the Ninth Circuit heard oral argument on an emergency motion to overturn Judge Robart. More than 130,000 people live-streamed the hearing.

    The Department of Justice represented Trump in the court of appeals and took several astonishing positions. Most remarkably, it warned that “judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”

    Trump (through his tweets) and his lawyers (in their briefs) thus argued not only that Trump should win on appeal, but that judges would cause grave harm merely by questioning his order.

  • 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.

  • February 25, 2016
    Guest Post

    by Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and Joshua Matz, associate at Robbins Russell LLP and former law clerk to Justice Anthony Kennedy from 2014 to 2015. Together, Tribe and Matz wrote Uncertain Justice: The Roberts Court and the Constitution.

    In 1901, Mr. Dooley—a popular, opinionated comic strip character—explained that “th’ Supreme Coort follows th’ election returns.”  Dooley’s view was cynical, political, and slightly unnerving. It was also right, in important respects. Elections matter, especially in polarized times. Nowadays, Democrats and Republicans can’t even agree on which election matters, let alone on judicial philosophy or temperament. A Justice selected by Hillary Clinton or Bernie Sanders would, beyond doubt, strive toward a very different future from one selected by Donald Trump, Marco Rubio, or Ted Cruz.

    But as we explain in our book, Uncertain Justice: The Roberts Court and the Constitution, no Justice—not a single one—is invariably liberal or conservative. Furthermore, a Justice’s influence on the Court can take many forms, not all of them reducible to vote tallies. This was true of Justice Antonin Scalia and it will be true of his successor. Thus, to better understand what issues lurk on the horizon for any new Justice, it is helpful to see where Scalia stuck to familiar left-right scripts and where he tossed those scripts aside.

    *          *          *

    Selected by President Ronald Reagan to be a white knight for judicial conservatism, Scalia largely fulfilled Reagan’s expectations. Waging war on liberalism, Scalia championed the right’s view of gun rights, abortion, campaign finance, voting rights, gay rights, capital punishment, gender equality, racial equality, access to justice, separation of church and state, and federalism.  In law schools and op-eds, his name grew synonymous with rigorous, principled conservatism. Even as divergent strands emerged within conservative ranks, Scalia urged the Court to move further and faster rightward—at times, blasting his conservative colleagues for their hesitation. Warren Court rules had to be ripped asunder, not whittled and narrowed. As a rock star of the right, its patron saint and favored son, Scalia made full use of his powers to remake the Nation in a more conservative light.    

    Within years of arriving at the Court, Scalia had become the left’s black-robed bête noir. His unabashed conservative views—not to mention his slashing rhetoric—offended many liberals, who saw in Scalia’s judgecraft a threat to core constitutional values. Moreover, the frequent alignment of Scalia’s policy preferences with his judicial votes led some to doubt the supposed virtues of his originalist and textualist methods. Charges of hypocrisy and incivility piled up, even as conservatives rallied to the man who finally spoke their truths. 

    Scalia is often typecast as the conservative Justice—a Republican appointee straight from central casting. While true in many areas of law, this view doesn’t hold water in a few important contexts. In those fields, Scalia upset the standard dichotomy. Given that many of these issues do not evoke uniform liberal/conservative splits, their future is especially uncertain.