Emoluments question

I am not a lawyer. But I have a legal question regarding the emoluments clause that could be the start of a constitutional confrontation. Lawyers in the audience, please tell me where I am going wrong in the following scenario?

Let us assume a foreign government official without diplomatic immunity from Fredonia stays at the Trump Hotel in Washington D.C. tonight. The Trump Hotel is still owned by the President. He had not given a credit card to hold the room. The foreign official is conscientious and checks out tomorrow morning. He receives a charge for the room. He refuses to pay for the room as it would be an emolument. He offers to place the money into escrow until the dispute can be resolved.

At that point the hotel management has two choices. Eat the loss to not embarrass the boss or initiate civil or criminal action to get the room fee? If they choose the second option, the entire question of what is an emolument has to be answered. Is that correct?

What am I missing here? And if I am not missing anything big, how do we recruit a good test case?

Where There’s a Will, There’s a Way to Screw the American People


Donald Trump, the GOP, and his wealthy backers had a real problem. On December 1st, an Obama administration rule that would expand by multiple millions of people the number of those who were eligible to receive overtime pay up to those who earn $47,500 a year was set to start:

In 2014, President Obama directed the Secretary of Labor to update the overtime regulations to reflect the original intent of the Fair Labor Standards Act, and to simplify and modernize the rules so they’re easier for workers and businesses to understand and apply. The department has issued a final rule that will put more money in the pockets of middle class workers – or give them more free time.

The final rule will:

– Raise the salary threshold indicating eligibility from $455/week to $913 ($47,476 per year), ensuring protections to 4.2 million workers.

– Automatically update the salary threshold every three years, based on wage growth over time, increasing predictability.

– Strengthen overtime protections for salaried workers already entitled to overtime.

– Provide greater clarity for workers and employers.

The final rule will become effective on December 1, 2016, giving employers more than six months to prepare. The final rule does not make any changes to the duties test for executive, administrative and professional employees.

The Republicans did not want this to go into effect, because if it did, they would find it difficult to repeal on 20 January, because even the American people are not dumb enough to notice their overtime being cut just two months after they started to receive it.

Fortunately for the Republicans, this just happened:

A Texas judge blocked President Obama’s bid to expand overtime pay protections to millions of Americans on Tuesday, thwarting a key presidential priority just days before it was set to take effect.

The Labor Department rule would have doubled the salary level at which hourly workers must be paid extra for overtime pay, from $23,660 to $47,476. Siding with business groups including the U.S. Chamber of Commerce, Texas District Judge Amos L. Mazzant III halted it.

The rule, finalized in May, represented the first such change in more than a decade and was hailed at the time as the most consequential action the Obama administration could take for middle-class workers without congressional involvement.

And with that, a significant payraise to millions of voters, economically anxious and otherwise, was strangled in the crib, and no fingerprints were left behind. Come January 20, Trump, Paul Ryan, and the coterie of wealthy industrialists and banksters who run this nation will quietly rescind the rule change, and no one will even know it ever existed.

America, fuck yeah!

How We Got to Trump


One of the more vexing things about the current election has been the fact that the now, all of a sudden, principled conservatives who are #NeverTrump are basically being given a free ride by the media to absolve themselves of any responsibility for their party nominating Trump. This didn’t just happen. This took years of effort, years of unprincipled playing to the mob, decades of subtle and not so subtle racism and otherism, years of chipping away at facts and logic, pretending tea party candidates and Sarah Palin were serious people, and to borrow a phrase from the C+ Augustus reign, years of “creating their own reality.” To borrow a more recent wingnut phrase, you built it, GOP.

At any rate, if you want a striking example of how we got to Trump, look no further than the spin from the Republicans, including the #NeverTrump frauds after Donald Trump refused to state he would accept the election results:

There is a fundamental difference in refusing to accept the results of the process before a vote has even been cast, de-legitimizing the election before it even happens, and contesting an election using pre-existing election law. What Donald Trump is doing is the former, what Gore did was the latter. It’s a fundamental distinction, and it is why people who know things are horrified by what Trump did last night:

Contesting an election does not de-legitimize it. Asking for a recount and pursuing your rights as LAID OUT IN ELECTION LAW does not de-legitimize elections. These polices are argued over, debated, and passed into law to make sure that we keep elections legitimate and fair and that everyone knows the rules. Individuals on twitter still being pissed about the election outcome does not de-legitimize elections. Candidates refusing to accept the outcome, before and after, de-legitimizes the election. Gore did neither.

And for the record, if anything in the 2000 election de-legitimized things, it was the Supreme Court making shit up and passing a ruling that was so obviously shite that they made sure it COULD NEVER be used as precedent:

omentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.


Even at the time, Bush v. Gore was treated as a kind of novelty item, a one-off decision that applied only to the peculiar facts then before the Justices. The majority itself seemed to want it that way. In the most famous sentence from the decision, the Justices wrote, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” (Unlike most weighty decisions, Bush v. Gore had no single author and was delineated “per curiam,” or by the Court, a designation the Justices usually reserve for minor cases.) In light of all these admonitions to leave the case be, might getting over it be the best advice?

Actually, no. To return briefly to the distant world of chads, hanging and otherwise, it’s worth recalling what Bush v. Gore was about. The pervasive uncertainty about the results of the election in Florida—at the time, Bush led by five hundred and thirty-seven votes out of nearly six million cast—prompted the Florida courts, interpreting Florida election law, to order a statewide recount of all undervotes and overvotes; that is, ballots that indicated no Presidential preference or more than one. (Chads were the tiny paper rectangles that voters were supposed to push through punch-card ballots.) That recount had already begun on Saturday, December 9th, when five Justices—Scalia, William H. Rehnquist, Sandra Day O’Connor, Anthony M. Kennedy, and Clarence Thomas—issued a stay, barring the Florida authorities from continuing their labors. Three days later, the same five issued the per-curiam decision that stopped the recount once and for all.

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems—a classic example of judicial activism, not judicial restraint, by the majority.

In short, this is how we got to Trump. Yes, Republican, you built this. And if you read this “DEMOCRATS ARE WORSE” gibberish from Bre Payton, graduate of the “Patrick Henry School of Political Journalism,” which I googled and is an actual place andnot a quip made up in the Free Republic comments section, they are still building it. Or demolishing it. Your call.

This is Wrong and Bullshit and You Shouldn’t Support It

In the Walter thread below, Adam linked to this story about scumbag sex offender Brock Turner’s return home:

Turner, who was released on Friday, was greeted in Sugarcreek Township by around a dozen angry protesters wielding menacing signs and, in some cases, weapons.

“He’s not going to live some happy pleasant life,” one protester told WCPO-TV. “We’re going to never let him forget what he did.”

“If he is uncomfortable then he begins to receive at least some punishment that he deserves for his crime,” said another.

I’m embarrassed for those people, and I am embarrassed for all the commenters at Jezebel. This is not acceptable behavior.

I personally think he is a scumbag and if I had my way, he would still be in jail for a number of years. I think his family and the people who wrote those letters in Turner’s defense displayed a sense of breathtaking entitlement. But Brock Turner didn’t sentence himself. The sentence was within the guidelines. He served his time, must now register as a sex offender, and will hopefully be haunted by his actions for some time to come.

But cheering armed mobs outside his house threatening castration and rape is illiberal, offensive, and obscene, not to mention unfair to his other neighbors. You want to do something productive? Help rape victims, donate to women’s shelters, and WORK TO CHANGE THE DAMNED LAW. But you don’t resort to running around waving around weaponry and getting in on mob justice. It’s, quite frankly, unAmerican.

And about those letters his parents and friends wrote.

That’s about as dumb a take on things as possible. By that logic we should be stalking every defense lawyer and any character witness who goes to court.

Let me tell you all a story.

A long time ago when I was a young right-wing fascist right out of the army and in college, I worked in the county probation office in Morgantown. I did a number of different things there, but one of the things I did the most was pre-sentence investigations. I did it because it was interesting work, but I also did it because it involved spending a lot of time with convicted felons, many of whom were pedophiles, child rapists, and sex offenders, and the other interns were college aged women and they just felt uncomfortable. So I would trudge over to the jail with a notebook, and do in depth reports on the convicted. I would look at their background, where they went to school, education level, family life growing up, employment history, etc. I would spend hours with them, just listening and jotting down notes, and then I would spend hours writing a detailed report that the Probation Officers would review, and then they would be given to the sentencing judge prior to sentencing.

Because I was a curious guy, I always went to the sentencings for the people whose reports I had written. Again, I was pretty right-wing, and not in favor of leniency. One of the judges I worked with quite a bit was a good ole boy, someone I learned to appreciate as a great man. He was, allegedly, extremely liberal, and a lot of people thought he was too lenient. But he was good to those who worked with him and generous with his time, so I found myself talking to him a lot.

One day, there was a particularly awful person being sentenced (and I don’t remember the charges, but it involved raping young children and a host of other things), and I sat there and listened to family member after family member go up and testify that the convicted was actually a good person. I remember being nauseated by it, because I had spent hours with the guy, and he was not any of the things his family was claiming. At any rate, the judge sentenced him, pretty firmly, and afterwards we had a chat.

I asked him- “Doesn’t it make you sick to your stomach listening to all these family members swearing what a good guy that scumbag is when we all know what he’s done?” The judge paused, looked at me, and said something I will never forget-

“If his kin and his lawyer aren’t going to defend him, who will?”

The judge later went on to become State Supreme Court Justice Larry Starcher. I’m seeing a lot of people who could have learned something from him.

And that’s all I have to say about that.

Liberte, Egalite, Fraternite! Liberte and Egalite Have Won Edition


(Eugene Delacroix’s Liberty Leading the People)

France’s highest administrative court, The State Council/Council de Etat, overturned the local burkini bans that had popped up in French beach towns over the past several weeks. The panel of three senior judges ruled that the ban:

“has dealt a serious and clearly illegal blow to fundamental liberties such as the freedom of movement, freedom of conscience and personal liberty.”

They found that no evidence produced in favour of the prohibition proved a risk to public order was being caused by “the outfits worn by some people to go swimming”.

 There will, of course, be pushback. The Mayor of Villeneuve-Loubet, who is also a member of France’s parliament, has indicated that he will push legislation in the next session to address the issue. Municipal authorities in Nice, Frejus, and Sisco have already stated that they will keep the ban in place despite the ruling. We will now have to wait and see how the different levels of French government, and the French themselves, reconcile themselves to the Council de Etat’s ruling.

Open Thread: Stop Mewling, Hugh

You were right there moderating debates, and you couldn’t keep Trump from beating every other GOP candidate…

Screw the Pearl-Clutchers — the Notorious RBG Did the Right Thing by Speaking Up

Yeah, she’s very sorry the media has turned itself into a wholly-owned subsidiary of the Krazy Koalition, and y’all can go eat paste. Finley Peter Dunne, we salute you!

I’m with Mr. Charles P. Pierce on this:

This is one of those days on which I’m glad I was raised Catholic and, therefore, was schooled in the difference between venial and mortal sin. Because anyone who thinks that RBG’s honest assessment of the vulgar talking yam is on a par with A.) Antonin Scalia’s hunting trips with Dick Cheney, or B.) the majority in Bush v. Gore including one justice (Scalia) whose son got a job with the administration that poppa helped install and another (Thomas) whose wife did, too, needs to seriously examine their consciences more than they did…

Ginsberg is not intolerant of conservatives; she and Scalia were opera buddies. But she’s 83, sharp as a tack, and a survivor of pancreatic cancer, which generally gives you the same odds as stepping in front of a westbound freight. Her big bag of fcks was empty long ago. She’s seen what’s happened to the courts first-hand, and she is right to warn us that a Trump administration is just as likely to put the gardener at Mar-A-Lago on the bench as not. Liberals, of course, are supposed to make sure they use the right fork when they sit down to dinner with barbarians.

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