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The President and the Purposes of the Foreign Emoluments Clause (Part I)

I promised to return to the subject of the Foreign Emoluments Clause and so today I will start a series of posts on the purposes of that Clause and whether it makes sense for the president to be excluded from its terms. This first post will set the stage with a little background.

To be clear, the question here is not merely whether the ostensible purposes of the FEC would be better served by including the president. Rather it is whether the exclusion of the president would be so discordant with those purposes that (1) the educated reader of the Constitution in 1787-89 would have assumed the Clause encompassed the president and/or (2) any suggestion of the president’s exclusion could have been expected to provoke controversy and opposition. If either or both of these is true, then silence regarding the president’s alleged exclusion should be taken as evidence that (1) such exclusion was either (a) not intended by the Framers or (b) not communicated by the Framers to anyone else; and (2) such exclusion was not widely understood by the ratifiers or the general public.

And silence there was. To my knowledge, prior to Professor Tillman’s raising the issue in 2009 or so, no one had ever expressly claimed or directly implied the president was excluded by the FEC. No president, no member of Congress, no executive branch lawyer, no constitutional scholar. No one. By contrast, there had been a number of statements expressly affirming or clearly assuming the president’s inclusion, including by Framers/ratifiers (Edmund Randolph and George Mason), by executive branch lawyers at the Office of Legal Counsel, by statute (the Foreign Gifts and Decorations Act) and by occasional comment of constitutional writers and scholars. Perhaps this is a relative paucity of affirmations over a period of two centuries, but on the other hand there was little reason for anyone to expressly consider and affirm what no one had disputed or denied.

Under the circumstances, it is not surprising that no one had offered an explanation as to why the Framers might have excluded the president from the FEC’s provisions. Indeed, Tillman himself, although he has intimated reasons why the president might have been excluded from other constitutional provisions, such as the Disqualification Clause (see here at page 92 n.83), has not explained to my recollection why the Framers would have wanted the president to be exempt from the FEC’s presumptive ban against accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” And there is no obvious reason (at least obvious to me) why the president would be exempted from a provision founded, in Justice Story’s words, “in a just jealousy of foreign influence of every sort.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1346.

Fortunately, Professor Grewal has attempted to fill this void. In a recent article focused primarily on other aspects of the FEC, he notes:

Scholarly debates show that whether the Foreign Emoluments Clause treats the President as a U.S. Officer remains an open question. At first glance, it may seem implausible that the Constitution would exempt any member of the government from a provision designed to prevent corruption. Yet the Domestic Emoluments Clause, which also guards against corruption, applies only to the President and not generally to U.S. Officers, or even to the Vice President. This suggests that the Framers may have drafted each emoluments clause to address their principal concerns, without attempting to guard against corruption of every type imaginable.

Regarding their principal concerns, the Framers may very well have believed that only appointed officers, like ambassadors, would make the type of extended visits abroad that could subject them to improper foreign influences. The President, they may have thought, would remain stateside to tend to the needs of the nation, and his potential corruption would be best addressed through the Domestic Emoluments Clause. Under this view, the exclusion of the President from the Foreign Emoluments Clause would be entirely consistent with the Framers’ design.

Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, **7-9 (forthcoming 2017).

Grewal also notes that the Framers might have been more concerned about the potential for corruption among those officers of the United States who did not receive fixed compensation, but were dependent on “potentially uncertain streams of income” such as charging transaction-based user fees for services like processing of immigration papers. Id. at *9. Because the Constitution guarantees the president a fixed salary, Grewal suggest that the Framers may have been less concerned about the possibility the president would be susceptible to foreign corruption. He acknowledges, however, that “no contemporaneous materials advance this understanding.” Id.

With this potential explanation in mind, let’s take a closer look at what the FEC proscribes. We begin with the text:

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 Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

U.S. const., art. I, § 9, cl. 8.

One thing to note from this language is that the U.S. officeholder is not only restricted from receiving any present or emolument, but two items not discussed by Professor Grewal. One is any title, including if not necessarily limited to any title of nobility, which appears to be a central focus of the Clause. (More on this later.)

The other is any “office.” Presumably an office conferred by a foreign government could impose duties to be performed on behalf of that government. Acceptance of such an office would seem to be manifestly improper for any federal officeholder, much less the president of the United States. For present purposes, however, I will assume that the FEC primarily contemplates ceremonial offices, which would simply be another way of conferring an emolument or title. Therefore, I will not give separate consideration to this restriction.

The language of the FEC must be understood in light of Article VI of the Articles of Confederation, which contained a closely related provision from which the FEC is derived:

No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

This provision of the Articles combines two different concepts. The first sentence limits the ability of states to conduct their own foreign relations. The last sentence prohibits the United States or any state from issuing titles of nobility. The middle sentence links these seemingly unrelated subjects by prohibiting any person holding “any office of profit or trust” under the United States or any state from accepting a title of nobility or other benefit from a foreign power.

The drafters of the Constitution broke this provision into two components. The FEC addresses prohibitions on the United States, forbidding the issuance of titles of nobility at the federal level and federal officeholders from accepting, without congressional consent, titles of nobility or other benefits from foreign powers. A separate provision, which immediately follows the FEC, contains a series of prohibitions on the states, including forbidding them from entering into any treaty, alliance or confederation and from issuing any title of nobility. See U.S. const., art. I, § 10, cl. 1.

There are two observations of interest here. The first is that the FEC uses the same term, “office of profit or trust” under the United States, as was used in the Articles. Since there was no president under the Articles, there may have not been a pre-existing understanding as to whether the term embraced the office of president.

Second, unlike the Articles, the Constitution does not forbid state officeholders from accepting titles of nobility, emoluments, etc. from foreign powers. The reason for the change is unclear. One possibility is that the Framers decided to permit such acceptance with the consent of Congress, but thought it improper or impractical to require state officeholders to seek such permission (imagine Congress being inundated with requests from state officials, who at that time would have been much more numerous than federal officers). Alternatively or in addition, they may have thought it inappropriate or unnecessary for the federal constitution to regulate the conduct of state officeholders.

It is also possible that the prohibition with respect to state officeholders in the Articles was considered necessary because of the particular structure of that system. The primary national institution under the Articles was the Confederation Congress, and delegates to that Congress, who were “annually appointed in such manner as the legislatures of each State shall direct,” arguably functioned more like state delegates or commissioners to an interstate convention than like ordinary legislators. This is speculation, but the drafters of the Articles may have thought that covering “offices of profit or trust” under any state was necessary in order to ensure that delegates to the Confederation Congress were subject to the prohibition.

With this background, in my next post I will turn to the purposes of the prohibition on titles of nobility.

2 Comments

  1. Seth Tillman says:

    Seth Barrett Tillman to Mike Stern (March 14, 2017)

    Dear Mike,

    My proposed explanations for the exclusion of the President (along with all other elected federal and state officials) from the scope of the Constitution’s Foreign Emoluments Clause …. See Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Northwestern University Law Review Colloquy 180 (2013):

    What might have motivated the Framers to exempt state officials from the reach of the Foreign Emoluments Clause? I frankly admit that I do not know. Perhaps it was nothing more than the simple prudential concern of getting the state legislatures to call state conventions to ratify the proposed federal constitution. Federal monitoring of state officials, per an Articles of Confederation Article VI analogue, may have been perceived—by both state officials and the public—as a source of friction and discord. It is one thing to put state officials under the thumb of independent U.S. Constitution Article III courts; it is quite another to put them under the thumb of Congress. A Foreign Emoluments Clause extending only to some federal positions risked some corruption at the state level, but it may have made the possibility of ratification all the more likely.

    Why did the Framers exempt federal elected officials from the Foreign Emoluments Clause? Again, I frankly admit that I do not know. Perhaps because they left the issue to future congressional rulemaking (for members) and to statutes (for members and other elected government positions)? Perhaps because they relied on both disclosure (i.e., Washington putting the key to the Bastille and the Louis XVI portrait on display) and elections? In other words, they relied on elected officials to act like fiduciaries. That is one answer.

    Still, I think the answer may be somewhat simpler. It is not uncommon to treat those at the apex of authority somewhat differently from others—even to exempt them from burdens which apply to others. Sometimes this is a reflection of insiders protecting their own. But, it is also frequently a reflection of deep wisdom: the kind that comes with practical experience in the world and its affairs. For example, the federal Code of Judicial Conduct applies to all Article III judges—except members of the Supreme Court of the United States. Is that because Supreme Court justices do not need ethics? No. Is it because they are better human beings, citizens, and jurists than their lower court colleagues? No. Consider recusal when judicial bias is asserted. Each justice must decide to recuse on his or her own. If an appeal to the full Court were permitted, then the minority’s ability to exercise the judicial power of the United States would exist only at the sufferance of the majority. If an appeal were permitted to non-members, then you will have effectively transferred responsibility from the Supreme Court to their minders.

    George Washington was not subject to the Foreign Emoluments Clause. When receiving a gift from a foreign government, his behavior was public and transparent. Secretary of State Jefferson was subject to the Foreign Emoluments Clause, and he acted in secret. Perhaps the final language of the Foreign Emoluments Clause reflects the victory of transparency concerns over corruption fears, at least when it comes to elected officials at the apex of political responsibility.

    Id. at 203-04 (footnotes omitted).

    To continue…

    Your explanation for the transition from the Article VI of the Articles to Article I, S 9, cl 8 of the Constitution, in regard to the latter’s dropping “office under the State” language, is:

    “Unlike the Articles, the Constitution does not forbid state officeholders from accepting titles of nobility, emoluments, etc. from foreign powers. The reason for the change is unclear. One possibility is that the Framers decided to permit such acceptance with the consent of Congress, but thought it improper or impractical to require state officeholders to seek such permission (imagine Congress being inundated with requests from state officials, who at that time would have been much more numerous than federal officers). Alternatively or in addition, they may have thought it inappropriate or unnecessary for the federal constitution to regulate the conduct of state officeholders.

    It is also possible that the prohibition with respect to state officeholders in the Articles was considered necessary because of the particular structure of that system. The primary national institution under the Articles was the Confederation Congress, and delegates to that Congress, who were ‘annually appointed in such manner as the legislatures of each State shall direct,’ arguably functioned more like state delegates or commissioners to an interstate convention than like ordinary legislators. This is speculation, but the drafters of the Articles may have thought that covering ‘offices of profit or trust’ under any state was necessary in order to ensure that delegates to the Confederation Congress were subject to the prohibition.”

    If it is your position that “office … under the State” in the Articles covers delegates to the Articles Congress, then one naturally must ask is it it your position that “office … under U.S.” in the U.S. Constitution covers Representatives and Senators? Do you believe that? And if not, why exclude Representatives and Senators and, I might add, state governors and other elected state positions–all of whom have (or had in 1789) power to amend or influence the federal Constitution, federal statutes, federal treaties, and federal appointments. The very same parade of horribles which applies to excluding the President from the reach of the FEC, also applies to these positions.

    And that is why I have not argued that the President is excluded from the reach of the FEC; rather, I have argued that all federal and state elected positions are excluded from the reach of the FEC.

    Seth

  2. Seth Tillman says:

    Seth Barrett Tillman to Mike Stern (March 14, 2017)

    Dear Mike,

    You wrote: “To my knowledge, prior to Professor Tillman’s raising the issue in 2009 or so, no one had ever expressly claimed or directly implied the president was excluded by the FEC. No president, no member of Congress, no executive branch lawyer, no constitutional scholar. No one.”

    Philadelphia Decr 22nd 1791.
    Dear Sir,
    I accept, with great pleasure, the new and elegant print of the King of the French, which you [Ambassador Ternant] have been so obliging as to send to me this morning as a mark of your attachment to my person. You will believe me, Sir, when I assure you,
    that I have a grateful and lively sense of the personal respect and friendship expressed in your favor which accompanied
    the Print, and that I am, with sentiments of sincere esteem and regard, Dear Sir, your most obedt Servt
    [President] Go: Washington

    Letter from President George Washington to Ambassador Ternant (Dec. 22, 1791), in 9 THE PAPERS OF GEORGE WASHINGTON 306 (Mark A. Mastromarino & Jack D. Warren, Jr., eds., 2000). Washington received other foreign gifts. While President, LaFayette, then a French government official, gave Washington the key to the Bastille. Although Washington accepted and kept the key, he failed to ask for congressional consent to do so. It is also possible that, on another occasion, Louis XVI gave Washington a carpet. See 2 ESTHER SINGLETON, THE FURNITURE OF OUR FOREFATHERS 503 (N.Y., Doubleday, Page & Co. 1906).

    You might also want to consider the guns President James Madison received from Alvarez, also diplomatic gifts.

    These events do not cohere with the view that the President is encompassed by the Foreign Emoluments Clause. I would say we have at least one President who “implied” that the presidency is not under the scope of the Foreign Emoluments Clause.

    Seth

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