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.

Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal Counsel. See Memorandum to the Honorable Kenneth A. Lazarus, Assoc. Counsel to the President, re: “Applicability of 3 C.F.R. Part 100 to the President and Vice President” (Dec. 19. 1974). Professors Seth Barrett Tillman and Josh Blackman have suggested that this memorandum is relevant to the debate, presumably in providing support for Tillman’s position that the president is not covered by the Foreign Emoluments Clause. Indeed, Tillman here cites the 1974 memorandum as contrary authority to a subsequent OLC opinion that expressly acknowledges that the Clause applies to the president.

For those unfamiliar with the background, Professor Tillman has long maintained that the president (and vice president) do not hold (1) “any Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause (art. I, § 3, cl. 7); (2) “any Office under the United States” within the meaning of the Incompatibility Clause (art. I, § 6, cl. 2); (3) “an Office of Trust or Profit under the United States” within the meaning of the Elector Incompatibility Clause (art. II, § 1, cl. 2); and, of course, (4) “any Office of Profit or Trust under [the United States]” within the meaning of the aforementioned Foreign Emoluments Clause.

It is fair to say that these claims were greeted with a large degree of skepticism by this blog. See, e.g., here (Disqualification Clause); here (Incompatibility Clause); and here (Foreign Emoluments Clause). At the time, however, the stakes were low with regard to a debate of primarily academic interest.

The stakes are higher now. The president-elect has received some criticism for refusing to divest himself of a large portfolio of international business interests. Among other things, this situation is said to create a high probability or virtual certainty (depending on whom you ask) that Mr. Trump will be in violation of the Foreign Emoluments Clause once he assumes the presidency. This thesis, of course, assumes the Clause applies to the president, and therefore it becomes a matter of some importance to know whether there is anything to Professor Tillman’s position.

Continue reading “Scalia, Trump, Tillman and the Foreign Emoluments Clause”

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.