Constitutional law roundup

  • Judge says Emoluments Clause suit based on Trump’s DC hotel can proceed [Andrew M. Harris, Bloomberg, Washington Post; two views at Volokh Conspiracy from David Post and Josh Blackman and Seth Barrett Tillman; earlier on Emoluments Clause litigation] Last year I noted the hotel-competitor fact pattern as the kind of emoluments case most likely to clear the standing hurdle;
  • Excessive fines are unconstitutional, whether levied on persons or on groups of persons [Ilya Shapiro and Matthew Larosiere and Dave Kopel on Cato/Independence Institute brief in Colorado Dept. of Labor v. Dami Hospitality]
  • Federalist Society conversation with author Joseph Tartakovsky about his new book, The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law;
  • “In 2016, Birmingham, Ala. officials imposed $10.10 minimum wage, but the next day state legislators preempted it, enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against blacks, who make up 72 percent of Birmingham and most of its City Council. Eleventh Circuit: ‘Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends.’ Plaintiffs’ equal protection claim should not have been dismissed.” [John Kenneth Ross, Short Circuit, on Lewis v. Governor of Alabama]
  • “This is the old ‘why do you make him hit you?’ argument applied to civil liberties. It excuses the actions of the abuser—the state in this case—as reactions to the missteps of the abused.” [J.D. Tuccille on curious ACLU argument that maintaining expansive Second Amendment rights just provokes the state into wider crackdowns]
  • North Carolina’s constitution has a clause endorsing right to “the enjoyment of the fruits of their own labor” which might furnish ground to challenge some economic regulation [Eugene Volokh]


  • Seems to me that honoring the corporate form should shield Trump from the emoluments clause claim.

    • This argument came up in an earlier comments discussion:

      As I said then, “it was done through our corporation” is primarily a defense against liability claims, not applicable here, and would be unlikely to save a payment from emoluments status if it clearly qualified otherwise.

      However, the plaintiffs still seem to me to be overreaching when they claim that market-rate transactions such as hotel room rentals at prevailing rates qualify as emoluments, especially absent evidence of wrongful intent. Otherwise the clause could be interpreted as coming into play when the President and his family, say, venture to sell inherited family furniture or land at auction. Apparently the latest federal judge did not agree with my view, but it will be interesting to see what happens on appeal.

      • Well, given what federal judges do nowadays, it’s hard to say. But a corporation is a separate legal entity, and absent some sort of “pay my corporation instead of me” agreement or “wink and nod”, Trump isn’t receiving payment, the corporation is.

        A closer Emoluments Clause case, I would think, would be Obama’s campaign acting with willful blindness towards foreign contributions via credit cards.