Foreign Emoluments Clause

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.[3]

The Framers' intentions for this clause were twofold: to prevent a society of nobility from being established in the United States, and to protect the republican forms of government from being influenced by other governments. In Federalist No. 22, Alexander Hamilton stated, "One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." Therefore, to counter this "foreign corruption" the delegates at the Constitutional Convention worded the clause in such a way as to act as a catch-all for any attempts by foreign governments to influence state or municipal policies through gifts or titles.[4]

The Foreign Emoluments Clause is constitutionally unique in other respects. First, it is a "negative" clause—a restriction prohibiting the passage of legislation for a particular purpose. Such restrictions are unusual in that the Constitution has been historically interpreted to reflect specific (i.e., "positive") sources of power, relinquished by the states in their otherwise sovereign capacities.[5] Moreover, it is a negative clause without a positive converse. A common example of this is how the Commerce Clause represents the positive converse to the restrictions imposed by the Dormant (or "Negative") Commerce Clause. However, neither an express nor implied positive grant of authority exists as a balance against the restrictions imposed by the clause. For this reason, the clause was cited by Anti-Federalists who supported the adoption of a Bill of Rights. Richard Henry Lee warned that such distinctions were inherently dangerous under accepted principles of statutory construction, which would inevitably "give many general undefined powers to congress"[6] if left unchecked.

Why then by a negative clause, restrain congress from doing what it would have no power to do? This clause, then, must have no meaning, or imply, that were it omitted, congress would have the power in question, either upon the principle that some general words in the constitution may be so construed as to give it, or on the principle that congress possesses the powers not expressly reserved. But this clause was in the confederation, and is said to be introduced into the constitution from very great caution. Even a cautionary provision implies a doubt, at least, that it is necessary; and if so in this case, clearly it is also alike necessary in all similar ones.[7]

According to Lee, the true purpose of the clause was merely to protect popular tradition: "The fact appears to be, that the people in forming the confederation, and the convention ... acted naturally; they did not leave the point to be settled by general principles and logical inferences; but they settle the point in a few words, and all who read them at once understand them."[6] It was argued, therefore, that a Bill of Rights was needed to safeguard against the expansion of federal power beyond such limited purpose(s).

The prohibition against officers receiving a present or emolument is essentially an antibribery rule to prevent influence by a foreign power.[8] At the Virginia Ratifying Convention, Edmund Randolph, a delegate to the Constitutional Convention, identified the Clause as a key "provision against the danger ... of the president receiving emoluments from foreign powers."[9]

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.[10]

The word "emolument" has a broad meaning. At the time of the Founding, it meant "profit", "benefit", or "advantage" of any kind.[11] Because of the "sweeping and unqualified" nature of the constitutional prohibition, and in light of the more sophisticated understanding of conflicts of interest that developed after the Richard Nixon presidency, most modern presidents have chosen to eliminate any risk of conflict of interest that may arise by choosing to vest their assets into a blind trust.[8] As the Office of Legal Counsel has advised, the Constitution is violated when the holder of an "Office of Profit or Trust", like the President,[12] receives money from a partnership or similar entity in which he has a stake, and the amount he receives is "a function of the amount paid to the [entity] by the foreign government."[10] This is because such a setup would allow the entity to "in effect be a conduit for that government", and so the government official would be exposed to possible "undue influence and corruption by [the] foreign government."[10] The Department of Defense has expressly held that "this same rationale applies to distributions from limited liability corporations."[13]

The issue of titles was of serious importance to the American Revolutionaries and the Framers of the Constitution. Some felt that titles of nobility had no place in an equal and just society because they clouded people's judgment. Thomas Paine, in a criticism on nobility in general, wrote:

Dignities and high sounding names have different effects on different beholders. The lustre of the Star and the title of My Lord, over-awe the superstitious vulgar, and forbid them to inquire into the character of the possessor: Nay more, they are, as it were, bewitched to admire in the great, the vices they would honestly condemn in themselves. This sacrifice of common sense is the certain badge which distinguishes slavery from freedom; for when men yield up the privilege of thinking, the last shadow of liberty quits the horizon.[32]

He felt that titles blinded people from seeing the true character of a person by providing titled individuals a lustre. Many Americans connected titles with the corruption that they had experienced from Great Britain,[33] while others, like Benjamin Franklin, did not have as negative a view of titles. He felt that if a title is ascending, that is, it is achieved through hard work during a person's lifetime, it is good because it encourages the title holder's posterity to aspire to achieve the same or greater title; however, Franklin commented, that if a title is descending, that is, it is passed down from the title holder to his posterity, then it is:

groundless and absurd, but often hurtful to that Posterity, since it is apt to make them proud, disdaining to be employ'd in useful Arts, and thence falling into Poverty, and all the Meannesses, Servility, and Wretchedness attending it; which is the present case with much of what is called the Noblesse in Europe.[34]

• Grewal, Amandeep (2017). "The Foreign Emoluments Clause and the Chief Executive" (PDF). Minnesota Law Review. 102: 639–693. SSRN 2902391.
• Teachout, Zephyr (2012). "Gifts, Offices, and Corruption". Northwestern University Law Review Colloquy. 107: 30–54. SSRN 2081879.