The Foreign Emoluments Clause

10 Elon Law Review 73 (2018)

Case Legal Studies Research Paper No. 2018-5

53 Pages Posted: 8 May 2018

See all articles by Erik M. Jensen

Erik M. Jensen

Case Western Reserve University School of Law

Date Written: May 1, 2018

Abstract

Because of the foreign business dealings of President Donald Trump and his family, interpreting the Foreign Emoluments Clause has become a nearly fulltime job for political pundits, with stories about the clause appearing in every conceivable media outlet. The clause provides that “no Person holding any Office of Profit or Trust under [the United States] 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.” If the president is benefiting economically from business dealings with foreign governments (or organizations that might be treated as agencies of foreign governments) and the benefits constitute emoluments, he is arguably violating the clause. This article considers several interpretive issues, including whether the clause applies at all to the president and what the meaning of “emolument” is. The article supports an expansive interpretation of the clause, to ensure, as much as possible, that American officials, including the president, don’t have divided loyalties—loyalty to the foreign state as well as to the United States.

Keywords: Foreign Emoluments Clause, Presidential Compensation Clause, Ineligibility Clause, Office of Profit or Trust [under the United States], emolument, foreign State

JEL Classification: K19

Suggested Citation

Jensen, Erik M., The Foreign Emoluments Clause (May 1, 2018). 10 Elon Law Review 73 (2018); Case Legal Studies Research Paper No. 2018-5. Available at SSRN: https://ssrn.com/abstract=3171805

Erik M. Jensen (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3613 (Phone)
216-368-2086 (Fax)

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