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May the President Accept a Foreign Title of Nobility?

Over at The Originalism Blog, Professor Seth Barrett Tillman cites a new piece of evidence for his position that the President does not hold an office “under” the United States within the meaning of the Constitution. (For prior discussions of Professor Tillman’s views on this see here, here and here), Specifically, he points to the fact that President Washington “accepted a framed full-length portrait of Louis XVI from the French ambassador.”

This acceptance, Tillman suggests, would have been unconstitutional if Washington had been an officer under the United States at the time because Article I, section 9, clause 8 provides:

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.

Because the portrait was evidently a “present” from the French government, it could not be accepted by any officer under the United States without the consent of Congress. Tillman contends that no such consent was sought or given; thus, Washington must either have (a) violated the Foreign Emoluments Clause or (b) believed that it was inapplicable to the president because his office was not “under the United States.”

Note that if the latter were true, it would mean that Washington not only believed the Clause inapplicable to the office of the president, but he thought this conclusion so inescapable and non-controversial that it was unnecessary to seek any formal opinion or make any record of his decision. It would also suggest he was unconcerned with the implication that the president could accept an office or title of nobility from a foreign government.

These assumptions are hard to indulge. As far as I know, there is no direct evidence that either Washington or any of his contemporaries interpreted the phrase “office under the United States” to exclude the presidency. This is not a natural or self-evident reading of the constitutional text, as illustrated by the fact that the conventional wisdom has long been to the contrary. Thus, we would have to believe that Washington acted on the basis of an original public meaning that was crystal clear to him, yet somehow vanished without a trace.

Even if we assume, for argument’s sake, that Washington could have read the text in the way Tillman proposes, it would still seem unlikely that he would have accepted the Louis XVI painting on that basis. Surely Washington would have been as concerned about violating the spirit as the letter of the Constitution. Article II expressly bars the president from receiving, during his term, “any other Emolument from the United States, or any of them.” Would not Washington have hesitated before interpreting the Foreign Emoluments Clause to permit the receipt of emoluments from a foreign government?

Even more importantly, it is hard to believe that Washington would have interpreted the Foreign Emoluments Clause to allow the president to receive an office or a title of nobility from a foreign government. The Constitution explicitly prohibits both federal and state governments from granting titles of nobility to anyone. Although it does not prohibit private citizens from receiving titles of nobility from foreign governments, this should not be taken as condoning the practice. William Rawle notes that “[a] salutary amendment, extending the prohibition to all citizens of the United States, and disenfranchising those who infringe it, has been adopted by some of the states; but not yet by a sufficient number.” W. Rawles, A View of the Constitution 120 (2d ed. 1829). It does not strike me as likely that Washington’s sensibilities were much different, or that he would have lightly interpreted the Foreign Emoluments Clause in the manner Tillman suggests.

For these reasons I would look for another explanation for Washington’s acceptance of the painting from the French ambassador. Perhaps he believed that he did have congressional consent for receiving such an item. Perhaps he did not believe, at the time he accepted the painting, that it was a personal gift (though he later took it to Mount Vernon). I would be reluctant to conclude that President Washington intentionally or negligently violated the Constitution, but even this seems more likely than the suggested alternative.

 

5 Comments

  1. Seth Tillman says:

    Dear Mike,

    The view that the President is not an officer of or under the United States went into decline after Washington’s presidency, but it did not “vanishe[] without a trace.” Stern, supra. See, e.g., DAVID A. MCKNIGHT, THE ELECTORAL SYSTEM OF THE UNITED STATES 346 (Philadelphia, J.B. Lippincott & Co. 1878) (“It is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’” (emphasis added)); see also CONGRESSIONAL RECORD: CONTAINING THE PROCEEDINGS OF THE SENATE SITTING FOR THE TRIAL OF WILLIAM W. BELKNAP, LATE SECRETARY OF WAR 130 (1876) (Senator George Sewell Boutwell: “[F]or according to the Constitution, as well as upon the judgment of eminent commentators, the President and Vice-President are not civil officers”); id. at 145 (Senator Newton Booth: “[T]he President is not an officer of the United States. As was tersely said by the Senator from Massachusetts [i.e., Mr. BOUTWELL], ‘He is part of the Government.’” (citing Story’s Commentaries)); cf. Oliver P. Field, The Vice-Presidency of the United States, 56 AM. L. REV. 365, 382 (1922) (“Whether the president and vice-president are officers of the United States is a subject on which conflicting opinions are held. It is not possible to deal here at length with . . . that question . . . .” (footnote omitted)).

    Let me ask you a question … if while you worked for Congress, you were asked to compile a list of all “officers under the United States” and their salaries, you would have listed the President and Vice President. You would not omit including them, would you? No, of course, not. That’s because you believe the P and VP are “officers under the United States.” The simple fact is that while Secretary of the Treasury, Hamilton was asked by the Senate to compile such a list. He took 90 pages and 9 months. But, he omitted the P and VP. Ockham’s razor. Right. You would have included them because you believe the P and VP are “officers under the United States.” He omitted them. It stands to reason that he omitted them because he (unlike you) did not believe them to be “officers under the United States.”

    So its your intuition on one side, and on the other … Hamilton and Washington (and Story, McKnight, Boutwell, and Booth, etc). I think my position is looking pretty good.

    Seth

  2. Seth- I think you have a good case that Article II’s references to “officers of the United States” do not include the President or VP. Whether or not the Constitution’s somewhat varied terminology in referring to officers was intended to convey different technical meanings, I am not sure. However, just because they are not officers within the usage of Article II does not necessarily mean they are not officers for purposes of other provisions, such as the Foreign Emoluments Clause or the Incompatability Clause.

    Correct me if I am wrong, but I gather that we have no “direct evidence” of anyone in the founding era saying that the president was not an “officer under the United States” (or, for that matter, an officer of the United States or similar formulation). Again, correct me if I am wrong, but I don’t recall anyone at any time, yourself excepted, who has expressed the opinion that the President is excluded from the Foreign Emoluments Clause. I am not saying that this ends the argument, but I think it is relevant to the question of whether we should interpret Washington’s acceptance of the painting as an implicit determination that the Clause is inapplicable to his office.

    My main point is that the idea the President can accept offices or titles of nobility from foreign governments seems like an extraordinary conclusion to me, and my instinct/intuition is that it would have seemed extraordinary to Washington and his contemporaries as well. Therefore, I would be very cautious about drawing this inference from the mere fact that he accepted a painting from the French ambassador.

    BTW, does it actually make sense to you that the Framers would have permitted the President to accept offices or titles from foreign governments without congressional consent?

  3. Seth Tillman says:

    Mike,

    A little fair play. You’ve asked me a lot of questions. I think I could answer them. I have already pointed out that my view did not “vanish,” but was alive and well in the 1870s. DAVID A. MCKNIGHT, THE ELECTORAL SYSTEM OF THE UNITED STATES 346 (Philadelphia, J.B. Lippincott & Co. 1878) (“It is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’” (emphasis added)).

    So … now you ought to answer my question … if while you worked for Congress, you were asked to compile a list of all “officers under the United States” and their salaries, you would have listed the President and Vice President. You would not omit including them, would you? No, of course, not. That’s because you believe the P and VP are “officers under the United States.” The simple fact is that while Secretary of the Treasury, Hamilton was asked by the Senate to compile such a list. He took 90 pages and 9 months. But, he omitted the P and VP.

    Why? Do you believe Hamilton and Washington were both negligent?

    Seth

  4. Seth- here at Point of Order, we are all about fair play. So the answer to your question is that if the Senate asked me to prepare a list of officers “under the United States,” the first thing I would want to know is why they wanted the list. (Well, the second thing- the first thing would be to ask why CRS couldn’t compile the list). If they were looking for a list of all officers confirmed by the Senate, for example, or all officers whose offices had been created by Congress, one wouldn’t put the President and VP on there.

    Based on my experience representing Members of Congress, I can tell you that for some purposes Members are considered “officers” and for some purposes they are not—it depends on the particular legal provision at issue. And as I indicated before, I am not sure whether “officer under the United States” had a particular technical meaning distinct from “officer of the United States” (or whether the Senate was using it in a particular sense when it asked Hamilton to compile the list).

    I would point out that my post was about the significance of Washington’s acceptance of the painting, not about Hamilton’s list. But I have to admit that I don’t find the omission of the President and VP all that significant. One could make a similar argument about Federalist No. 67, where Hamilton responds to the claim that the President could use the Recess Appointments Clause to fill vacancies in the Senate. Although Hamilton is obviously eager to demonstrate the falsity of this claim, in part by showing that the President’s appointment power does not extend to Senate seats, he fails to make the argument that Senators are not “officers of the United States” within the meaning of Article II. Is this circumstantial evidence that Hamilton thought Senators were officers of the United States? If so, it strikes me as very weak evidence at best.

  5. Seth Tillman says:

    Mike,

    The analogy does not work. When Hamilton wrote Federalist No. 67, no one asked or expected him to list every conceivable counter-argument against his opponent’s position. And no one specifically asked Hamilton to deal with the but-is-a-congressman-an-officer question. On the other hand, when the Senate issued its 1792 order, it required Hamilton to list …

    every person holding any civil office or employment under the United States

    Every, not some; any, not some. Hamilton had 9 months and 9 pages to respond. He left off the President – the highest page official in the United States – and he left off the Vice President – the fourth highest. Why would he have done so except that he believed that the P and VP were, like Representatives and Senators, not offices under the United State? Moreover, if the question were a close one, of course, he should have added the P and VP. Functionally, adding the P and VP would not have made the document less readable or useful. So why leave them out (like congressmen) unless you were genuinely convinced that adding them in was not consistent with the guidance you received?

    Yes, I readily believe that you would have sought clarification if this sort of project landed on your desk. But in 1792, there really was not anyone for Hamilton to ask. Individual senators had no staff. Hamilton could not turn to the secretary of the Senate, sergeant-at-arms, or doorkeeper. And it would have been preposterous for the Secretary of the Senate to have contacted a senator over this ministerial matter. So, he exercised his personal judgment and left the President and VP off the list. Is that telling? Of course, it is.

    As to your question … You ask “does it actually make sense to you that the Framers would have permitted the President to accept offices or titles from foreign governments without congressional consent?”

    Does it make sense? Yes, some. Many of the Framers’ constitutional provisions were directed at the wrongs they had experienced under colonial governments, under the governments of the newly independent states, and under the Articles. Our foreign ambassadors received gifts from foreign governments. The Foreign Emoluments Clause bans that practice. Am I surprised the language they chose in the Foreign Emoluments Clause did not address Presidents, Vice Presidents, and members of Congress receiving such gifts? No, not really.

    Similarly, the Incompatibility Clause addresses a problem the Framers had experienced: the chief magistrate (governors or kings) bribing members of the legislature with offices. The Incompatibility Clause addresses that problem. Am I surprised that this leaves unaddressed the possibility that a member of Congress may also try to hold the vice presidency or presidency? No, I am not surprised: that was not a problem which they had experienced. So, it was not one that they were likely to address, or they left it to be addressed in the future – not in the Constitution.

    The Constitution permits many bad results: joint-federal-state office-holding (a good many members of the First Congress held state legislative, executive, and judicial positions); joint-executive-branch-judicial-branch office-holding; holding multiple offices in a branch, etc., etc. There is no express provision precluding a person from holding more than one House seat, or more then one Senate seat, or a seat in each chamber. The fact that a problem is left unaddressed is not surprising. Many future contingencies were left to discretion, the electoral process, impeachments, future rules under Congress’ rule-making authority, future statutes, future constitutional amendments and, truth be told, future constitutions.

    Would the Framers have thought it a good result if the President accepted a gift without congressional consent? Probably most would not. But, we know at least one did. Right?

    Seth

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