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Cogesoa Resarc Servicei
Updated January 27, 2021
The Emoluments Clauses of the U.S. Constitution
Litigation during the Trump Administration raised a
number of legal issues concerning formerly obscure
constitutional provisions that prohibit the acceptance or
receipt of emoluments in certain circumstances. This In
Focus provides an overview of these constitutional
provisions, highlighting several unsettled legal areas
concerning their meaning and scope, and reviewing the
litigation against former President Donald Trump based on
his alleged violations of the Emoluments Clauses.
The Constitutional Provisions
The Constitution mentions emoluments in three provisions,
each sometimes referred to as the Emoluments Clause:
* The Foreign Emoluments Clause (art. I, § 9, cl. 8):
[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.
* The Domestic Emoluments Clause (a.k.a. the
Presidential Emoluments Clause) (art. II, § 1, cl. 7):
The President shall, at stated Times, receive for his
Services, a Compensation which shall neither be
encreased nor diminished during the Period for which he
shall have been elected, and he shall not receive within
that Period any other Emolument from the United
States, or any of them.
* The Ineligibility Clause (art. I, § 6, cl. 2): No Senator
or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the
Authority of the United States, which shall have been
created, or the Emoluments whereof shall have been
encreased during such time; and no Person holding any
Office under the United States, shall be a Member of
either House during his Continuance in Office.
Purposes of the Emoluments Clauses
Each of the Emoluments Clauses has a distinct, but related,
purpose. The purpose of the Foreign Emoluments Clause is
to prevent corruption and limit foreign influence on federal
officers. The Clause grew out of the Framers' experience
with the European custom of gift-giving to foreign
diplomats, which the Articles of Confederation prohibited.
Following that precedent, the Foreign Emoluments Clause
prohibits federal officers from accepting foreign
emoluments without congressional consent.
The purpose of the Domestic Emoluments Clause is to
preserve the President's independence. Under the Clause,
Congress may neither increase nor decrease the President's
compensation during his term, preventing the legislature
from using its control over the President's salary to exert
influence over him. To further preserve presidential
independence, the Clause prohibits a sitting President from
receiving emoluments from federal or state governments,
except for his fixed salary.
The purpose of the Ineligibility Clause is to preserve the
separation of powers and prevent executive influence on the
legislature (and vice versa). The Clause thus prohibits
federal officers from simultaneously serving as Members of
Congress. Moreover, a Member of Congress may not hold
an office if it was established during his tenure or if the
emoluments of that office were increased during his tenure.
Officers Subject to the
Emoluments Clauses
In terms of the persons to whom they apply, the scope of
the Domestic Emoluments Clause and the Ineligibility
Clause is clear from the Constitution's text: The Domestic
Emoluments Clause applies to the President, and the
Ineligibility Clause applies to Members of Congress.
The scope of the Foreign Emoluments Clause is less clear.
By its terms, the Clause applies to any person holding an
Office of Profit or Trust under the United States. The
prevailing view of the Clause is that this language reaches
only federal, and not state, officeholders. According to the
Department of Justice's Office of Legal Counsel (OLC),
which has a developed body of opinions on the Foreign
Emoluments Clause, offices of profit include those that
receive a salary, while offices of trust are those that
require discretion, experience, and skill.
There is disagreement, however, over whether elected
federal officers, such as the President, are subject to the
Foreign Emoluments Clause. Legal scholars have debated
whether, as a matter of original public meaning, the Foreign
Emoluments Clause reaches only appointed officers (and
not elected officials). The OLC has generally presumed that
the Foreign Emoluments Clause applies to the President,
and the only district court to consider the issue (in District
of Columbia v. Trump) came to the same conclusion.
The Meaning of the Term Emolument
Black's Law Dictionary defines an emolument as an
advantage, profit, or gain received as a result of one's
employment or one's holding of office. There is
significant debate as to precisely what constitutes an
emolument within the meaning of the Foreign and
Domestic Emoluments Clauses, particularly as to whether it
includes private, arm's-length market transactions. The only
two district courts to decide this issue (in District of
Columbia v. Trump and Blumenthal v. Trump) adopted a
broad definition of emolument as reaching any benefit,
gain, or advantage, including profits from private market
transactions not arising from an office or employment,
although higher courts have not weighed in on the issue.
Standing to Enforce an Alleged Violation
of the Emoluments Clauses
Whether the Emoluments Clauses may be enforced through
civil litigation is an open question. The doctrine of standing
presents a significant limitation on the ability of public
officials or private parties to seek judicial enforcement of
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