Defiance and Surrender

10 Pages Posted: 20 Jun 2018

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: May 30, 2018

Abstract

The Constitution’s Foreign Emoluments Clause provides that “no 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.” If the President is bound by this provision, he cannot accept foreign presents without the “Consent of the Congress.” If the President is not bound by this provision, he can accept foreign presents without violating this clause. The pivotal question to decide if consent is needed, is whether the President holds an “Office of Profit or Trust under” the United States.

President Washington and other Founders who were his successors during the Early Republic openly received, accepted, and kept diplomatic gifts and other gifts from foreign governments and their officials without seeking or receiving congressional consent. These early presidents acted as if they were not bound by the Foreign Emoluments Clause. However, Presidents Jackson, Tyler, Van Buren, and Lincoln declined to personally accept foreign gifts. These later presidents, other scholars contend, acted as if they were bound the Foreign Emoluments Clause. Courts might take the intuitive position that because all presidents have equal authority, the latter presidents ought to be preferred. The Supreme Court has taught a different lesson: modern practice does not automatically overcome earlier precedents. There is an additional principle that informs this inquiry. When considering competing streams of historical practice by the three branches, courts favor purported defiance over voluntary surrender. Disputed assertions of power by Washington and his successors in the Early Republic are more probative about the scope of the Foreign Emoluments Clause than voluntary acquiescence by Jackson and post-Jackson presidencies.

Keywords: Foreign Emoluments Clause, Emoluments, Separation of Powers

Suggested Citation

Blackman, Josh, Defiance and Surrender (May 30, 2018). 59 South Texas Law Review 157 (2018), Available at SSRN: https://ssrn.com/abstract=3187631

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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