Interpretation The Foreign Emoluments Clause Reached Only Appointed Officers
by: Seth Barrett Tillman
In 1966, Congress enacted the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342. The 1966 Act provides elected and appointed officials and employees of the United States government with concrete guidance in regard to the receipt of gifts from foreign governments. Although there have been a few exceptional cases, primarily relating to President Obama’s Nobel Prize and federal employees’ working for foreign government universities, in general, over the last half century, there has been little need for the judiciary or others to expound on the Constitution’s Foreign Emoluments Clause; there has been little need because in most cases the propriety of foreign gifts is now tested by a detailed, modern federal statute, rather than by the more than 200-year-old and obscure Foreign Emoluments Clause.
Recently, the Foreign Emoluments Clause has enjoyed a surprising intellectual revival. This revival did not come about in response to a scandal or controversy connected to any specific foreign gifts. Instead, the Clause was the heart of a concerted intellectual effort, initiated by two prominent legal academics, Professors Lawrence Lessig and Zephyr Teachout, to rewrite the history of the Philadelphia Convention and our understanding of the Framers’ original intentions. As the new view has it, this Clause, in conjunction with other clauses, was part of the Framers’ anti-corruption project and that collectively these clauses gave rise to an implicit structural nontextual anti-corruption constitutional principle.
Other nontextual constitutional principles—such as separation of powers and federalism—have long been recognized, and such principles carry considerable weight, both in judicial decision-making and in scholarship. If an anti-corruption principle of similar weight were judicially recognized, then this principle—according to its intellectual proponents—would permit Congress to regulate contributions to congressional (and presidential) election campaigns, notwithstanding competing First Amendment concerns relating to freedom of association and free expression. Indeed, the new scholarship, and its focus on the Framers’ anti-corruption concerns, were cited favorably by the four dissenting Supreme Court Justices in Citizens United v. Federal Election Commission (2010) (Stevens, J.). But in his concurrence, Justice Scalia rejected the dissent’s position, in part, because the purported anti-corruption principle leaves “no limit to the Government’s censorship power.”
This essay is part of a discussion about the Foreign Emoluments Clause with Zephyr Teachout, Associate Professor of Law, Fordham University School of Law. Read the full discussion here.
I think the new scholarship’s focus on the Framers’ deep concern in regard to bribery, divided loyalties, and corruption is entirely correct. The problem for the new scholarship is that the Framers’ abstract corruption-related concerns are not our law—the text of the Constitution is our law.
When turning to the Foreign Emoluments Clause’s Office . . . under the United States language, the new scholarship must confront a difficult interpretive question: does the Clause’s Office-related language apply to elected federal positions: e.g., members of Congress and the Presidency? If there are significant gaps within the reach of the Clause, that is, if the scope of the Clause’s Office-language reaches only appointed, as opposed to elected, federal positions, then it becomes difficult, if not impossible, to make the argument that the newly discovered nontextual anti-corruption constitutional principle founded on this Clause (and on other similarly worded clauses) extends or should extend to elected positions. The new scholarship’s nontextual anti-corruption principle cannot or ought not extend beyond the actual language of the Clause, particularly where, as here, the Framers could have easily added language (or used other suitable and more general language) making the Foreign Emoluments Clause squarely applicable to some or all elected positions.
Traditionally, precedents established by President George Washington and his administration carry great weight. President George Washington accepted and kept two diplomatic gifts, but he neither asked for nor received congressional consent. Washington’s conduct was widely reported in the press. So it would seem to indicate that he, his administration, Congress, and the public did not believe that the Clause applied to the presidency.
This interpretation is confirmed by Secretary Hamilton’s list. Hamilton was asked by the Senate to produce a financial statement listing all persons holding Office . . . under the United States and their salaries. Members of Congress were not on the list, nor was the President. With all due respect to Professor Lessig’s and Professor Teachout’s revised, modern understanding of the history and scope of the Constitution’s Foreign Emoluments Clause, Washington’s understanding, Hamilton’s understanding, and their eighteenth century contemporaries understanding must count for more. Because the original public meaning of the Foreign Emoluments Clause never embraced state or federal elected positions, any nontextual anti-corruption constitutional principle, to the extent one can be inferred from the Constitution’s structure and the Framers’ intent, cannot or, at least, should not reach elected positions. Thus, if Congress intends to regulate contributions to federal election campaigns, it cannot rely on the Foreign Emoluments Clause as a source of authority to do so.