New Article: Is President Trump in Violation of the Foreign Emoluments Clause?

New Article: Is President Trump in Violation of the Foreign Emoluments Clause?

Recent controversy has centered on President Trump’s businesses accepting payments—such as payment for space in the Trump Tower—from foreign governments. Several prominent legal commentators have begun a lawsuit claiming that the president is violating the Constitution’s Foreign Emoluments Clause by accepting “emoluments” from foreign governments.

That Clause, which is Article I, Section 9, Clause 8, provides as follows:

No Title of Nobility shall be granted by the United States: 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.

The term “emolument” appears three places in the Constitution. Article I, Section 6, Clause 2 prohibits a member of Congress from being appointed to an office “which shall have been created, or the Emoluments whereof shall have been encreased” during his current congressional term. Article II, Section 1, Clause 7 prohibits the president from accepting any emolument other than his salary from the federal government or from any state. Some argue that President Obama violated that provision by accepting interest payments on government bonds while president.

In a new scholarly article I examine the Constitution’s use of the word “emolument.” I find that during the Founding Era the word often was used in a sense wide enough to cover both Trump’s and Obama’s conduct. However, I also find that there were two common narrower meanings, and that the Constitution adopted one of those. In the Constitution, the term signifies “compensation with financial value, received by reason of public employment.” Thus, neither Trump nor Obama received unconstitutional “emoluments.”

There are at least two other issues concerning the Trump case that the article does not address:

1. Is he covered by the Foreign Emoluments Clause at all? It applies to those holding an “Office . . . under” the United States. There is a respectable view that this particular formulation does not apply to the president, but only to appointed officers. This argument holds that the framers meant to include the president, they used other phrases, such as “officer of the United States.”

2. If a payment from a foreign government is not an emolument, could it still be an unconstitutional “present?” This obviously depends both on the Founders’ understanding and one the circumstances surrounding the payments. I may investigate this question in the near future.

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