While there has been some controversy about the precise nature and scope of the foreign emoluments provision, virtually all academics accept that it generally extends to all federal officeholders, whether designated or chosen, up to and including the president. Furthermore, the clause does not merely include gifts of money or valuable object. It includes all benefits that could compromise the official’s absolute loyalty to their post, including an advantage or service. Special considerations in business transactions with states or sanctioned businesses within the state or anti-competitive benefits to the office would be considered in this bracket. The Foreign Emoluments Clause has to apply if the foreign government has significant control over an organization contemplating transfer of a present or emolument to an American official.
Arguably, the clause would forbid even competitively fair transactions with foreign states because the profit accruing to the officeholder would fall within the ordinary meaning of ‘emolument,’ and because such arrangements would threaten exactly the kind of improper influence that the clause was intended to prevent. Although not all emoluments are gifts, or all gifts emoluments, the term ‘emoluments’ in the Foreign Emoluments Clause, in context, might be a way of ensuring that the clause picks up transfers of value more generally.
[1.0] WHAT IS AN EMOLUMENT
Before proceeding, it must be understood what could constitute an emolument, a question that has occupied legal scholars for quite a while. The debate has ensued about whether the clause essentially restricts private market transactions between mentioned officials and governments or whether the prohibition is centered around the employee’s office. To a large extent, this has been decided on a casewise basis.
The word ‘emolument’ is based on the Latin expression emolument which has a double significance, implying commitment or labor, and the second definition as a benefit, again, or a favor.
Emoluments may depend given the nature and period of its provided services. The word is obsolete and little used nowadays, even in legal cases, particularly in the Emoluments Clause in the United States.
The Constitution contains three provisions that mention the term ‘emolument’:
- The Foreign Emoluments Clause.Article I, Section 9, Clause 8 provides that ‘no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State’;
- The Domestic Emoluments Clause. Article II, Section 1, Clause 7 provides that ‘[t]he President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States or any of them’; And
- The Ineligibility Clause. Article I, Section 6, Clause 2 provides (among other things) that no Member of Congress shall ‘be appointed’ during his or her term ‘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 such time[.]’
Determining who is subject to the terms of the Emoluments Clause is important since the Foreign Emoluments clause is not as clear-cut as the Domestic Emoluments Clause, clear in its application to the President. The Foreign Emoluments clause applies to any individual who holds an ‘Office of Profit or Trust’ under the United States. The prevailing understanding is that this refers to federal rather than state officials. Under the Department of Justice, the Office of Legal Counsel refers to these offices as those that receive a salary, with offices of trust instead requiring discretion, experience, and skill. For decades, the OLC has guided government employees and officials, including presidents, on potential violations of the Emoluments Clauses.
A major issue is whether elected federal officers like the President are subject to this clause, but it is under debate. The OLC decisions do offer a part of the few perspectives into understanding the Emoluments Clauses by a government body. While the assessments may not expressly support the expansive concept of ‘emoluments,’ however, they indicate that the OLC has consistently considered the two clauses’ anti-corruption spirit. Public opinion about the Emoluments Clauses suggests that the OLC has considered three considerations in deciding if the recognition of such benefits or gains infringes the Domestic or Foreign Emoluments Provision. In analyzing issues surrounding the Foreign Emoluments Provision, the OLC identified whether [A.] the individual or individuals acquiring the benefits or gains hold any Office of Profit or Trust, [B.] the institution supplying the emoluments is actually a foreign nation, and [C.] the reception of the emoluments will make the beneficiary vulnerable to unfair interference or misconduct.
[2.0] PURPOSE OF THE EMOLUMENTS CLAUSE
The Emoluments Clause’s primary purpose is to prohibit such people, particularly all government offices, from taking personal advantage of their particular and exalted role in society.
The Foreign Emoluments Provision is enacted to discourage foreign interference and abuse in the U.S. government. It stems from the tradition of offering presents that European officials used to practice while meeting international leaders. Preventing the acceptance of a donation or some other reward thereby eliminates any impact over the gift’s future beneficiary.
The Domestic Emoluments Provision aims to protect the President’s freedom and, in the same manner, to minimize any control over him through the right to change his pay.
The Ineligibility Emoluments Provision has a similar purpose: to divide the authority divisions and prohibit executive control on the legislature.
[3.0] BACKGROUND TO THE EMOLUMENTS CLAUSE
The primary purpose of the framers of the constitution for this specific provision was indeed two-pronged, intending to [A.] prohibit the creation of a nobility-centric society in the United States and [B.] to preserve the republican systems of government from becoming corrupted by certain regimes. In Federalist No. 22, Alexander Hamilton said, ‘One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.’ Accordingly, to tackle such ‘foreign corruption’ delegates to the Constitutional Convention drafted the provision to serve as a catch-all for every endeavor by foreign governments to manipulate the state or the municipality through gift-giving
The Foreign Emoluments Clause is fundamentally peculiar since it exists as a ‘negative’ clause—a limitation that forbids the passing of laws for a certain cause. Such constraints are unique because the Constitution has traditionally been viewed as representing particular (i.e., ‘positive’) bases of authority, forfeited by States in their otherwise autonomous capacity. Moreover, it is a negative provision without a positive converse. A typical example of this is how the Commerce Clause provides a constructive contrast to the limitations enforced by the Dormant (or ‘Negative’) Commerce Clause. However, neither the express nor the inferred affirmative awarding of authority occurs as a balance to the provision’s limitations. That is why the provision was quoted by anti-federalists, who sponsored the introduction of the Bill of Rights.
Therefore, why forbid Congress from doing something it will have no authority to do? This provision would either have little significance or suggest that, if it were omitted, the Congress would have the authority in dispute, either based on the theory that such general terms in the Constitution can be read in such a way as to grant it or based on the principle that the Congress has powers that are not specifically reserved. But this article was part of the confederation and is claimed to have been inserted into the constitution with considerable care. Even a precautionary clause suggests a question that it is necessary; yet, if that is the case, it is clearly indeed necessary in all related situations
[4.0] ENFORCING THE EMOLUMENTS CLAUSE.
Separate from concerns related to the Emoluments Clauses’ objectives is how the mandates of the regulations are applied, and when and to what degree the federal courts and the Congress have a role to play in resolving breaches of the Clauses. The doctrine of standing has become the key challenge in modern cases concerning the President, wherein standing as a threshold restriction as to why an individual or corporation suing in a federal court has the ‘right to make a legal claim or to seek judicial enforcement of a duty or right’ is called into question. The limitation incorporates a constitutional feature of Article III of the U.S. Constitution, which generally restricts federal judicial powers’ operation to ‘cases’ or ‘controversies.’
Since 2016, three cases have been brought against President Donald Trump, claiming breach of the Foreign Emoluments provision about reimbursement from foreign countries for services to the President’s assets or license arrangements with Trump’s corporate companies.
One suit has been withdrawn and consequently overturned, restored, and remanded to the circuit court. There are two more outstanding lawsuits. Government officials and representatives of Congress are expected to adhere to the regulations and codes of ethics and conflict of interest, some of which are enforced more by the Foreign Emoluments Clause. There is a strong consensus that the Foreign Emoluments Clause extends to designated positions in the federal government. Correspondingly, the Foreign Gifts and Decorations Act prohibits staff in appointed offices from accepting ‘gifts’ or ‘decorations’ by international governments without Congress’s approval. While there is some controversy as to whether the Foreign Emoluments Clause extends to elected public representatives, the code of conduct and ethics for Members of the House and the Senate specifies that the Constitution forbids them from accepting ‘presents’ from foreign entities.
These Requirements are all in keeping with the Foreign Emoluments Clause’s intent, in that they guarantee that federal officials and representatives of Congress should not inappropriately solicit or obtain presents from foreign sources.
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1. Article I, Section 1, Paragraph 7:
The clause provides that: The United States shall grant no Title of Nobility: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
2. Guarantee Clause ARTICLE IV, SECTION 4
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
3. The Department of Justice Office of Legal Counsel has opined that
[t]he language of the Emoluments Clause is both sweeping and unqualified. See 49 Comp. Gen. 819, 821 (1970) (the ‘drafters [of the Clause] intended the prohibition to have the broadest possible scope and applicability’). It prohibits those holding offices of profit or trust under the United States from accepting ‘any present, Emolument, Office, or Title, of any kind whatever’ from ‘any . . . foreign State’ unless Congress consents. U.S. Const, art. I, § 9, cl. 8 (emphasis added). . . . The decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause
4. D.C. and Maryland v. Trump No. 8:17-cv-01596; Citizens for Responsibility and Ethics in Washington v. Trump
5. Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020),