« William Baude & Stephen Sachs: The Misunderstood Eleventh Amendment
Michael Ramsey
| Main | Daniel Birk: Interrogating the Historical Basis for a Unitary Executive
Michael Ramsey »

11/05/2019

Josh Blackman & Seth Barrett Tillman on Congress Approving Emoluments [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman, Senator Blumenthal's Emoluments Clause brief conflicts with INS v. Chadha.  From the introduction:

The Foreign Emoluments Clause provides that "[N]o Person holding any Office of Profit or Trust under [the United States], 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." In a series of briefs and articles, we have explained that the phrase "Office of Profit or Trust under [the United States]" applies to appointed federal officers, but not to elected officials. Therefore, the Foreign Emoluments Clause does not forbid the President or members of Congress from accepting foreign government gifts and emoluments. Congressional consent is not a precondition to their accepting such things. By contrast, appointed officers need congressional consent before accepting foreign government gifts and emoluments. This understanding of the operation of the clause is consistent with the original practice of the government under Washington, his administration, and his successors in the early Republic who were Framers and founders, and their administrations.

When Congress has chosen to grant its consent, it has acted by statute: an instrument passed by both houses of Congress and presented to the President. ... INS v. Chadha (1983) teaches that these resolutions, like any other statute however stylized, must comply with the requirements of bicameralism and presentment—that is, the resolutions must be approved by both houses of Congress and be presented to the President. ...

However, Senator Blumenthal and other Democratic members of Congress articulated a different theory about congressional instruments that consent to foreign state gifts and emoluments. In a recent brief filed in Blumenthal v. Trump, the plaintiffs stated that the President plays no role when Congress, under the Foreign Emoluments Clause, grants consent to a covered officer's accepting a foreign state gift or emolument.

The Framers' decision to give Congress an ongoing procedural role in vetting foreign emoluments—an exclusive authority exercised without the President—was a deliberate one. Unlike the Foreign Emoluments Clause, some constitutional prohibitions give Congress no special role to play, e.g., U.S. Const. art. II, § 1, cl. 7 (Domestic Emoluments Clause), while others require only that certain acts be authorized "by Law," e.g.id. art. I, § 9, cl. 7 (Appropriations Clause).

Plaintiffs' Opposition Brief at 9–10 (D.C. Cir. Oct. 22, 2019) (emphasis added). The plaintiffs contend that a concurrent resolution would suffice to approve a foreign state gift or emolument. This sort of instrument is merely passed by both houses of Congress and is not separately presented to the President. Plaintiffs' position is novel: such a concurrent resolution cannot have the force of law. Instead, the Constitution, under settled Supreme Court precedent, demands that Congress must use a bona fide statute, even if stylized as a so-called joint resolution.

Maybe.  I'm not sure Chadha is decisive because it (arguably) relied on the fact that the resolution changed private rights.  But Article I, Section 7 is categorical: "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; ..."  It would take some work to get around that.  On the other hand, a literal reading  of Article I, Section 7 would seem to include some other things that I think not everyone agrees must be presented to the President, including declarations of war (Art. I, Sec. 8); congressional consents to various state activities (Art. I, Sec. 10); and (especially) proposals for constitutional amendments (Art. V).

UPDATE: John Vlahoplus comments: 

One might also consider the roles of state legislatures under the federal constitution.  Those roles have included prescribing the times, places and manners of holding federal elections; directing the manner of appointing the state’s Electors; choosing the state’s U.S. Senators; ratifying proposed constitutional amendments; consenting to federal purchases of state lands and to the formation of certain states; and directly appointing the state’s Electors.  In some of these cases the legislature might function in a lawmaking capacity, submitting its decisions to the executive for approval or veto.  In others it might function as an assembly, independent of the executive.  In yet others its function might differ depending on how it acts—as an assembly if by majority vote or in a lawmaking capacity if by a plurality vote.  If it acts as an assembly, it might act by concurrence of both houses or by joint ballot.  Indeed, Article I, Section 7 might not even apply to consent under the Foreign Emoluments Clause. The Clause might allow Congress to consent by joint ballot rather than concurrence.

The Supreme Court has applied a functional test to determine whether a state legislature acts as a lawmaking body or an assembly under specific constitutional provisions.  A functional test might authorize Congress to act as an assembly under the Foreign Emoluments Clause.  The Clause provides a check.  The Constitution might allow Congress, as a steward, to waive that check—including for the President if the presidency is an office of profit or trust under the United States. 

For much of the constitutional history noted above, see James C. Kirby, Jr., here at 501-03.