"There's a Flip Side to That Coin."

 A number of posts have discussed "Miles' Law," that is, where you stand depends on where you sit.  Attitudes toward procedures and institutions depend on whether you control them.  At Axios, Jim VandeHei and Mike Allen write:

Through silence or vocal support, House and Senate Republicans are backing an extraordinary set of new precedents for presidential power they may come to regret if and when Democrats seize those same powers.

Here are 10 new precedents, all set with minimal GOP dissent: 

1. Presidents can limit the classified information they share with lawmakers after bombing a foreign country without the approval of Congress.
2.  Presidents can usurp Congress's power to levy tariffs, provided they declare a national emergency.
3. Presidents can unilaterally freeze spending approved by Congress, and dismantle or fire the heads of independent agencies established by law.
4. Presidents can take control of a state's National Guard, even if the governor opposes it, and occupy the state for as long as said president wants.
5. Presidents can accept gifts from foreign nations, as large as a $200 million plane, even if it's unclear whether said president gets to keep the plane at the end of the term.
6. Presidents can actively profit from their time in office, including creating new currencies structured to allow foreign nationals to invest anonymously, benefiting said president.
7. Presidents can try to browbeat the Federal Reserve into cutting interest rates, including by floating replacements for the Fed chair before their term is up.
8. Presidents can direct the Justice Department to prosecute their political opponents and punish critics. These punishments can include stripping Secret Service protections, suing them and threatening imprisonment.
9. Presidents can punish media companies, law firms and universities that don't share their viewpoints or values.
10. Presidents can aggressively pardon supporters, including those who made large political donations as part of their bid for freedom. The strength of the case in said pardons is irrelevant.

Between the lines: Friday's Supreme Court ruling limiting nationwide injunctions — a decision widely celebrated by Republicans — underscores the risks of partisan precedent-setting.Conservatives sped to the courts to block many of President Biden's signature policies — and succeeded.

And since losing control of the Senate, Democrats have gone quiet on abolishing the filibuster. 

For decades, Democrats said that the term "states' rights" was coded racism -- until they used the term in defense of same-sex marriage.

Green Light to Emoluments Clause Suit

Dahlia Lithwick at Slate:

On Wednesday, U.S. District Judge Peter J. Messitte gave an unexpected green light to the attorneys general of Maryland and the District of Columbia, who had claimed in a lawsuit that payments to properties owned by Donald Trump violate the Constitution’s arcane foreign and domestic Emoluments Clauses. Messitte, who works out of the United States District Court for the District of Maryland, found that the plaintiffs have standing to proceed with their case, at least with respect to the Trump International Hotel in D.C., but not properties in other states.

In a similar case in December, a judge in New York ruled against a different set of plaintiffs, finding they had not shown they were directly harmed by domestic and foreign officials making payments to Trump properties. But in his 47-page ruling, Messitte denied the Justice Department’s motion to dismiss with respect to Trump properties in the District of Columbia but not Maryland. The court made no other decisions beyond finding that the plaintiffs have standing to move forward with their case.

Of particular note, wrote the judge, was the Trump International Hotel D.C., “a five-star, luxury hotel located on Pennsylvania Avenue, N.W., in Washington, near the White House.” He noted that “[d]irectly or indirectly, the President shares in the revenues that the Hotel and its appurtenant restaurant, bar, and event spaces generate.” Messitte noted that “[s]ince the President’s election, a number of foreign governments have patronized or expressed a definite intention to patronize the Hotel, some of which have indicated that they are doing so precisely because of the President’s association with it” and made special mention of the fact that “at least one State—the State of Maine—patronized the Hotel when its Governor, Paul LePage, visited Washington to discuss official business with the Federal Government.”

The Zombie Amendments

At NPR, Ronald Elving writes of the "zombie amendments," proposed constitutional amendments that never won ratification by 3/4 of the states but, because they have no expiration date, are not exactly dead.

1. The oldest is the Titles of Nobility Amendment, first sent to the states in 1810 on the verge of the second war with Great Britain (to be known as the War of 1812). It provided that any American citizen who accepted or received any title of nobility from a foreign power (or accepted any gift from such a power without the consent of Congress) would forfeit his or her American citizenship.

This amendment came close to ratification, with a dozen states giving thumbs-up within two years. But there were 17 states as of 1803, so the Anti-Title Amendment fell short. No states have since joined in, but in the absence of an expiration clause, this amendment remains technically available.

The next of the zombies had a far shorter interval of viability but conjures a moment of maximum tension in U.S. history.

2. It was known as the Corwin Amendment after the Ohio congressman who proposed it, but it has been remembered as the Slavery Amendment.

Passed by Congress in 1861, on the eve of the Civil War, the Slavery Amendment sought to halt the secession movement by guaranteeing the federal government would not abolish slavery or otherwise interfere with the "domestic institutions of any state, including that of persons held to labor or service by the laws of said State."

It came too late to appease the seceding states, which would eventually number 11. But it was ratified by two of the slave-holding states that did not leave the Union. Needless to say, interest in this measure was superseded by the 1865 passage and ratification of the 13th Amendment, abolishing slavery and involuntary servitude. But technically, the Slavery Amendment has never expired and remains outstanding.

3. The latest of this group of still-pending amendments is the Child Labor Amendment, granting the Congress power to regulate the labor of children under the age of 18. It was ratified by 28 states, far short of the 36 required at the time. The last state to ratify did so in 1937, nearly a decade after Congress had passed this amendment, but none has signed on since, largely because other laws enacted since (principally the Fair Labor Standards Act) have accomplished much of the amendment's intent.

The Titles of Nobility Amendment reads as follows:

Resolved by the Senate and House of Representatives of the United States of America
in Congress assembled (two-thirds of both Houses concurring), That the following section be submitted to the legislatures of the several states, which, when ratified by the
legislatures of three fourths of the states, shall be valid and binding, as a part of the
constitution of the United States.

If any citizen of the United States shall accept, claim, receive or retain any title of
nobility or honour, or shall, without the consent of Congress, accept and retain any
present, pension, office or emolument of any kind whatever, from any emperor, king,
prince or foreign power, such person shall cease to be a citizen of the United States,
and shall be incapable of holding any office of trust or profit under them, or either of
them.

Emoluments Clause Lawsuit

A press release from the Attorney General of Maryland:

Maryland Attorney General Brian E. Frosh and District of Columbia Attorney General Karl A. Racine announced today that they have filed a federal lawsuit against President Donald Trump, alleging that the President’s wide-ranging business entanglements violate the Constitution’s Foreign and Domestic Emoluments Clauses. The suit seeks an injunction to put a stop to the president’s constitutional violations.

The Emoluments Clauses were included in the Constitution as anti-corruption provisions, meant to shield the president from outside influence and ensure that he works in the nation’s interest rather than focusing on his own bottom line. Specifically, the Foreign Emoluments Clause bars foreign powers from influencing or inducing the President with money or other items of value. The Domestic Emoluments Clause prevents individual states from competing against each other by giving the President money or other things of value.

“President Trump has violated important anti-corruption provisions of the U.S. Constitution. We are a nation of laws and no one—including the President of the United States—is above the law,” said Attorney General Racine. “As state attorneys general representing the people, we have a duty to serve as a check and balance against the president, whose business activities have opened the door to the type of corruption the Framers of our Constitution aimed to prevent.” “

Elected leaders must serve the people, and not their personal financial interests. That is the indispensable foundation of a democracy,” said Attorney General Frosh. “We cannot treat a president’s ongoing violations of the Constitution and disregard for the rights of the American people as the new and acceptable status quo. The president, above all other elected officials, must have only the interests of Americans at the heart of every decision.”

“President Trump’s continued ownership interest in a global business empire, which renders him deeply enmeshed with a legion of foreign and domestic government actors, violates the Constitution, calling into question the rule of law and the integrity of our political system,” the complaint states. For example, the President continues to own luxury hotel and resort properties - - including a new one just down the street from the White House -- catering to foreign and state government business. He continues to seek --- and in fact recently obtained from China -- valuable trademarks from foreign countries for his business ventures. Foreign and U.S. government entities rent space in Trump-owned buildings.

According to the complaint, “[U]ncertainty about whether the President is acting in the best interests of the American people, or rather for his own ends or personal enrichment, inflicts lasting harm on our democracy. The Framers of the Constitution foresaw that possibility, and acted to prevent that harm.” Attorneys General Racine and Frosh expressed their thanks to their staffs and to several partners who provided assistance in assembling the lawsuit. In particular, they thanked Citizens for Responsibility and Ethics in Washington (CREW) for their assistance. The full complaint can be found here. For more information about the lawsuit, including a list of Frequently Asked Questions (FAQs), please visit www.oag.dc.gov or www.marylandattorneygeneral.gov/Pages/Emoluments/. 

Impeachment and the Emoluments Clause

At Brookings, Norman Eisen, Richard Painter, and Laurence H. Tribe have an brief titled "The Emoluments Clause: Its text, meaning, and application to Donald J. Trump."

While the phrasing may strike us as peculiar, everything about the Emoluments
Clause militates in favor of giving the broadest possible construction to the payments it
encompasses. For that reason, the Clause unquestionably reaches any situation in which a federal officeholder receives money, items of value, or services from a foreign state.

Just as plainly, the Emoluments Clause covers any transaction between a federal
officeholder and a foreign state in which the foreign state offers a “sweetheart deal” or any other benefit inconsistent with a purely fair market exchange in an arms-length transaction not specially tailored to benefit the holder of an Office under the United States.

... 

[If] Mr. Trump enters office in what would obviously constitute a knowing and indeed intentional violation of the Emoluments Clause and then declines to cure that violation during his tenure, Congress would be well within its rights to impeach him for engaging in “high crimes and misdemeanors.” This would not require any evidence of provable bribes or other specific malfeasance, since the whole aim and theory of the Emoluments Clause is that the President (among others) is not lawfully permitted to order his private dealings with foreign powers such that they are vulnerable to systemic, invidious, undetectable corruption. So long as Mr. Trump persists in doing so, Congress would have a plainly valid basis under the Constitution for concluding he cannot serve in office—both as a matter of first principles and given evidence that at least one prominent leader in the ratification process saw violations of this Clause as grounds for impeachment.