Author Archives: Andy Grewal

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Economic Substance De-Codification and the Supreme Court

by Andy Grewal — Monday, Mar. 6, 2017

As one of the revenue raisers to offset the costs associated with the Affordable Care Act, Congress added Section 7701(o) to the tax code. That provision, which has nothing to do with health care, codifies the “economic substance doctrine” created by the federal district courts and appellate courts. Generally speaking, under the doctrine, the lower […]

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The Constitutionality of the Trump Organization’s Illegal (?) Chinese Trademark

by Andy Grewal — Tuesday, Feb. 21, 2017

Over the past week, several sources reported that the Trump Organization finally won its long-running battle to obtain a Chinese trademark. See, e.g., CNN (Feb. 17, 2017). A “squatter” had previously registered the trademark, which related to the use of the Trump name in construction-related businesses. But after years of litigation and administrative petitions, the […]

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Can Congress Get President Trump’s Tax Returns?

by Andy Grewal — Monday, Feb. 13, 2017

During the 2016 election, Donald Trump became the first major Presidential candidate in recent history to refuse to disclose his tax returns, citing ongoing IRS audits. Since taking office, President Trump has indicated that he will continue to keep his tax returns secret, arguing that only the media, and not the voters, care about them. […]

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“See the Sights of Terminal 4!” A Reply to Section 1182(f) Enthusiasts, by Ian Samuel

by Andy Grewal — Saturday, Feb. 11, 2017

This guest post comes from Ian Samuel, a Climenko Fellow and Lecturer on Law at Harvard Law School.  His areas of scholarly interest focus on cyberlaw, especially as it intersects with criminal law, security, and intellectual property.  He has clerked for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, and for […]

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Some Thoughts on Business Entities and the Foreign Emoluments Clause

by Andy Grewal — Thursday, Feb. 2, 2017

Much of the commentary on President Trump and the Foreign Emoluments Clause has assumed that foreign government payments made to the Trump Organization should be treated as payments to the President himself. In this post, I want to informally explain how the presence of the business entities comprising the Trump Organization complicates the analysis. For […]

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The Foreign Emoluments Clause and the Chief Executive

by Andy Grewal — Thursday, Jan. 26, 2017

As regular readers of this blog know, I have written several posts on the Foreign Emoluments Clause over the past couple months.  During that same time, I have been working on an extensive scholarly article on the clause, and I recently posted a draft on SSRN.  (Download here: The Foreign Emoluments Clause and the Chief […]

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Donations of Emoluments to the U.S. Treasury—Tax Deductible?

by Andy Grewal — Friday, Jan. 13, 2017

On Wednesday, President-Elect Donald Trump, through his legal advisors, presented his plan to address potential conflicts of interests created by his continued ownership in the Trump Organization. As part of his plan, the President (referred to this way for ease of exposition) has promised to transfer profits derived some foreign government transactions to the United […]

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Should Congress Impeach Obama for His Emoluments Clause Violations?

by Andy Grewal — Tuesday, Dec. 13, 2016

My prior post explained how ordinary business transactions between foreign governments and the Trump Organization would not automatically create violations of the Foreign Emoluments Clause regarding President-elect Trump. That post concluded that the term “emolument” refers only to payments made in connection with the performance of services for a foreign government (whether as an officer or employee), […]

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What DOJ Opinions Say About Trump and the Foreign Emoluments Clause

by Andy Grewal — Wednesday, Dec. 7, 2016

My prior post explained how the Foreign Emoluments Clause probably would not apply to ordinary business transactions between foreign governments and Donald Trump’s businesses. That post assumed, as a threshold matter, that the Foreign Emoluments Clause, which applies to holders of an “Office of Profit or Trust,” reaches the President. However, as noted in the […]

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The Trump Hotel Isn’t Unconstitutional

by Andy Grewal — Tuesday, Nov. 22, 2016

Commentators have argued that President-Elect Trump’s various business interests, including in the D.C.-based Trump Hotel, may create constitutional problems under the Emoluments Clause. See, e.g., “Trump’s Hotel Lodges a Constitutional Problem,” Bloomberg View (Nov. 21, 2016). As relevant here, the Emoluments Clause prevents a person holding a federal office from accepting any “present”  or “emolument” of […]

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