The Foreign Emoluments Clause — Where the Bodies Are Buried: 'Idiosyncratic' Legal Positions
43 Pages Posted: 26 Feb 2018 Last revised: 16 Sep 2018
Date Written: January 24, 2018
In 2017, three sets of plaintiffs in three different federal district courts brought civil actions against the President of the United States: each action alleged that the President has and continues to violate the Constitution’s Foreign Emoluments Clause. The Foreign Emoluments Clause 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.
There are only a handful of federal cases discussing the Foreign Emoluments Clause. Not one of these cases has any extensive discussion of the scope of the Foreign Emoluments Clause or the scope of the clause’s Office of Profit or Trust under the United States language (“Office-language” or “Office...under the United States-language”). Not one of these cases, expressly or impliedly, affirms or denies that the clause applies to the President. Likewise, there is no decision by any court of record (of which I am aware) which affirms or denies that the clause’s Office-language, or closely similar language in any other constitutional provision, encompasses the presidency. If the courts were to reach the merits, the issue at hand — i.e., the scope of the clause’s Office-language — is entirely one of first impression. Still, there has been some discussion of the clause and its Office-language, primarily, but not exclusively, amongst academics. Such discussion has appeared in the Department of Justice’s Office of Legal Counsel memoranda, academic articles, popular magazines focusing on news, politics, and law, and in amicus briefs. Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views — many of which contradict one another — many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are — not merely in their conclusions, but more importantly in their broad methodological approach.
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