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06/23/2017

More on the Emoluments Clause
Michael Ramsey

Brianne J. Gorod at Take Care Blog: Because President Trump Has Chosen Not To Go to Congress, Members of Congress Must Go to the Courts. From the introduction:

When the nation’s Founders came together to draft a new national charter, they were profoundly concerned about both corruption of federal officeholders and foreign influence over the nation.  They understood what a threat corruption posed, and they worried that foreign nations might attempt to meddle in America’s affairs, including by giving benefits to the nation’s chief executive to subvert his loyalties. 

In response to those concerns, the Founders included in the Constitution the Foreign Emoluments Clause, which prohibits any person “holding any Office of Profit or Trust under [the United States]” from “accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without “the consent of the Congress.”  Although there’s been a great deal of talk about this Clause since Donald Trump’s election, there has been much less talk about five of its most important words: “the consent of the Congress.” 

To the Founders, “the consent of the Congress” language was critical.  By requiring federal officeholders to first go to Congress and identify the specific benefits they wished to accept from foreign states, the Founders ensured that an officeholder would not be the sole judge of his own integrity. 

Moreover, and just as important, they also ensured that a federal officeholder’s acceptance of any foreign “Emolument[s]” would be transparent and subject to public examination, thus minimizing the dangers of corruption and influence that the Foreign Emoluments Clause was adopted to prevent.  When Congress was first called upon to exercise this responsibility in 1798, one lawmaker explained its value in this fashion: “[i]f presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors.”

Also Simon Stern guest blogging at Balkinization: Presents, Emoluments, and Corruption. From the conclusion: 

Although the refrain “we love our customers” has become a banal sentiment that reeks of insincerity, it captures a psychological truth that goes without saying (that’s why its constant repetition makes it sound so insincere). According to Trump’s lawyers, the prohibition on emoluments cannot extend to the sale of goods for “fair market value.” But transactions of that kind, no less than gifts and titles of honor, tend to elicit a sense of gratitude—in fact, such commercial transactions are likelier to have that effect than the patronage of someone who pays you a toll or other fee for performing your official duty. When people get paid for duties performed in office, they tend to regard the money as merely their due, which anyone else would just as readily have paid. But profits from commercial transactions, particularly luxury goods (even if at “fair market value”) do elicit a sense of gratitude, for the obvious reason that the customer might have gone somewhere else. This is especially true when the customer makes a point of patronizing the owner’s hotel “so I can tell the new president, ‘I love your new hotel!’”

That is precisely the state of affairs that the framers sought to prevent, by opting for a term that applies not merely to a small subset of the transactions that might elicit the recipient’s gratitude, but rather to the whole array. Contrary to the DOJ’s contention, “the term ‘Emolument,’ when read harmoniously with the rest of the Clause,” does not have “the natural meaning of the narrower definition of profit arising from an office or employ.” Read alongside the ban on “present[s],” the natural meaning entails a prohibition on the various transactions that induce the recipient to respond with gratitude.

And, from a while back (apologies for missing it earlier), John Mikhail at Balkinzation: "Emolument" in Blackstone's Commentaries.  The central point:

In their white paper on conflicts of interest, Donald Trump’s lawyers claimed that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  Since then, other commentators have also defended an “office-related” definition of the term (see, e.g., here, here, and here).

Blackstone does not support such a narrow reading.  Occasionally, he refers to the emoluments of government officials, such as postmasters, civil magistrates, and naval seamen.  But the significance of these public employment contexts must be interpreted cautiously, and on the whole they appear to be exceptional. The majority of Blackstone's usages of "emolument" involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

So (a) lots of originalism in the emoluments clause debate; but (b) I have not heard any really good response to Seth Barrett Tillman's point that in the immediate post-ratification period key framers appeared to think the clause did not apply to the President.

Also, I think there needs to be a more direct explanation, fro the President's challengers, of why Congress cannot consent by acquiescence, as the Supreme Court held in a different context, in Dames & Moore v. Regan.  Congress knows about the emoluments issue and has not raised any objection -- why is this not enough to show that it is not troubled by the President's action?  (I think the answer is that Congress must act formally and that Dames & Moore was wrongly decided on this ground, but are non-formalists wiling to say that?).