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Nov. 30 — The often-overlooked emoluments clause of the U.S. Constitution has come into the spotlight after Donald Trump’s presidential victory.
The clause, at Art. I, §9, cl. 8 of the U.S. Constitution, was also included in the Articles of Confederation.
It was “motivated by a fear of corruption,” according to the National Constitution Center’s Interactive Constitution.
It prohibits a “person holding any office of profit or trust” under the United States from accepting a “present, emolument, office or title” from a foreign state without Congress’s permission.
Some now fear that Trump’s vast real estate holdings will pose a problem under this clause.
“The idea is that when foreign officials stay in a Trump International Hotel to ingratiate themselves with the president, they’ll be giving him an emolument—that is, a form of payment,” Harvard University law professor Noah Feldman wrote Nov. 21.
Perhaps more objectionably, Trump has come under fire for allegedly mixing business with official state responsibilities.
When he “met with the British politician Nigel Farage in recent days, he encouraged Mr. Farage and his entourage to oppose the kind of offshore wind farms that Mr. Trump believes will mar the pristine view from one of his two Scottish golf courses, The New York Times reported. And “long-delayed building permits” in Argentina were green lighted just three days after Trump spoke with the country’s President Mauricio Macri, according to Vanity Fair.
Trump said Nov. 30 that he’ll leave his business “in total,” and will release a plan for handling his businesses Dec. 15. It’s unknown whether this will mollify the president-elect’s critics.
In the meantime, here are some little-known facts about this little-known Constitutional provision.
In United States ex rel. New v. Rumsfeld, 350 F. Supp. 2d 80 (D.D.C 2004), an Army medical specialist challenged his bad conduct discharge for failure to follow an order. He claimed the order to wear a U.N. shoulder patch and distinctive U.N. headgear while on duty overseas would have violated the emoluments clause.
In rejecting that argument, a federal district court noted that there appeared to be no Supreme Court precedent on point.
Indeed, the language of the emoluments clause is cited in only three Supreme Court cases, none of which address the clause itself, according to research conducted by Bloomberg BNA. Those cases are: Kepner v. United States, 195 U.S. 100 (1904), Afroyim v. Rusk, 387 U.S. 253 (1967) and Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).
Speaking of Afroyim v. Rusk, the Supreme Court there held that Congress has no authority to strip U.S. citizens of their citizenship, even for voting in foreign elections.
In doing so, the court discussed “a proposed Thirteenth Amendment, subsequently not ratified, which would have provided that a person would lose his citizenship by accepting an office or emolument from a foreign government.”
The dissent elaborates: “The proposed amendment was, in a modified form, accepted by both Houses, and subsequently obtained the approval of all but one of the requisite number of States.” It goes on to suggest that it could have been “intended in part as a sanction for” a violation of the emoluments clause.
The Supreme Court hasn’t been in the business of adjudicating emoluments clause claims, but the U.S. Department of Justice has. The DOJ has occasionally been asked to opine on whether a certain teaching or consulting arrangement would run afoul of the clause, or whether certain officials are subject to its prohibitions.
In 2009, following the announcement that President Barack Obama would receive the prestigious Nobel Peace Prize, the DOJ weighed in.
Even though the prize consists of “ten million Swedish Kroner (or approximately $1.4 million), a certificate, and a gold medal,” the President’s receipt of the prize wouldn’t violate the emoluments clause, the DOJ said Dec. 7, 2009. That’s because “the Nobel Committee that awards the Peace Prize is not a ‘King, Prince, or foreign State,’” and therefore the clause “does not apply,” the DOJ said.
The letter noted that “since 1906, there have been at least six federal officers who have accepted the Prize while serving in their elected or appointed offices. The Peace Prize has been received by two other sitting Presidents—Theodore Roosevelt and Woodrow Wilson—by a sitting Vice President, Secretary of State, Senator, and by a retired General of the Army.”
Even though the DOJ letter regarding Obama’s acceptance of the Nobel Peace Prize said the president “surely” holds an “office of profit or trust” under the United States, not all constitutional scholars agree.
University of Chicago Law School constitutional law professor William Baude explains in The Journal of Things We Like (Lots) that “office” and “officer” may not have a static meaning in the Constitution. He points to the emoluments clause as an example.
“President George Washington publicly received gifts from French officials (the key to the French Bastille and a portrait of Louis XVI) without asking Congress’s permission,” Baude wrote. “This suggests that he was not subject to the Foreign Emoluments Clause, which applies to a ‘Person holding any Office of Profit or Trust under [the United States].’”
He also notes that “in 1792, Treasury Secretary Alexander Hamilton was instructed to report to the Senate ‘every’ person holding ‘office … under the United States’ and their salaries. His ninety-page list included every appointed officer, including those in the legislature, such as the Clerk of the House, but excluded elected officials such as the President, Vice President, and members of Congress.”
“This suggests that some definitions of office will turn on whether one is elected rather than which branch one is in,” Baude wrote.
In 2009, a foreign service officer sued over Hillary Clinton’s appointment as head of the State Department in Rodearmel v. Clinton, 666 F. Supp. 2d 123 (D.D.C. 2009).
Rodearmel claimed Clinton’s appointment violated the domestic emoluments clause, at Art. I, §6, cl. 2 of the U.S. Constitution, because she voted to increase the salary of the secretary while she was serving in the Senate.
The domestic emoluments clause prohibits senators and representatives from being “appointed to any civil office under the authority of the United States which shall have been created or the emoluments whereof shall have been increased during” the time for which they are elected.
The problem has come up “numerous times in American history, and the response has ranged from nothing, to statutes which retroactively reduce any salary or benefits flowing to the office of the new appointee,” University of Cincinnati College of Law professor Michael Soliminewrote in 2014.
“Some have argued, however, that the retroactive fix does not cure an emoluments clause violation, and on at least five occasions the legislation has provided a special review process for an anticipated constitutional attack,” he said.
The case against Clinton was dismissed for lack of standing.
To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at email@example.com
To contact the editor responsible for this story: Jessie Kokrda Kamens at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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