The Foreign Emoluments Clause: Article I, Section 9, Clause 8

No single issue dominated the Constitutional Convention more than corruption. The word appears in Madison’s notes more than fifty times, more than “violence” or even “faction.” Again and again the delegates returned to the danger of foreign and domestic bribery, of cabals and intrigue infecting the fledgling republic. As Hamilton later wrote in The Federalist No. 68: “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”

And when they spoke and wrote about corruption, they did not share the modern Supreme Court's cramped understanding that corruption is merely "quid pro quo" exchanges, but the older tradition, coming from Aristotle via Montesquieu, that corruption includes any use of public power for private selfish ends. Corruption, therefore, requires prophylactic efforts, because it is difficult if not impossible to identify corruption merely by the act; the structure of power and acceptable arrangements must be organized in a way to encourage public orientation, and discourage greedy use of public power. 

The Emoluments Clause is not an afterthought or a curiosity, but a centerpiece of the American tradition. It was debated at the convention and approved despite the fact that the framers were aware it embodies a radical choice. At a time when the practice of lavishing foreign officials with gifts was a diplomatic norm, the Framers made a stark break with European tradition. They committed the new nation to refusing foreign presents, even at the cost of complicating its fragile international position. That choice was not mere moralizing. It was a declaration that independence and self-government were impossible if public officials could be bought, swayed, or imperceptibly shaped by foreign powers bringing favors. 

Seen alongside the other anti-corruption provisions of the Constitution—the veto power, residency requirements, prohibitions on selling offices, transparency rules, and more—the Emoluments Clause reveals a larger design. The Constitution is not only a blueprint for checks and balances; it is a machine built to resist corruption. Just as the engine of a car is built to propel it forward, the engine of the Constitution was built to prevent corruption from overtaking the republic.

For a long time, the Emoluments Clause was not litigated, but it was always honored. Presidents recognized its force, and Presidents for the last 240 years, until Trump, have occasionally challenged the outer edges of the Emoluments Clause, but not its application to them. The Office of Legal Counsel, as well as several federal agencies, recognized its force and import. 

After Trump's first term, the clause moved into judicial review for the first time.  Modern courts, against adamant Trump opposition, affirmed that the Clause is alive and enforceable and applies to the Presidency.  In Blumenthal v. Trump (D.D.C. 2018), a federal court held that members of Congress had standing to challenge the President for accepting alleged foreign emoluments. In District of Columbia and Maryland v. Trump (D. Md. 2018), the court ruled that the Emoluments Clause applies squarely to the President, rejecting the argument that the Chief Executive was somehow exempt. Both cases were later cut short on standing and procedural grounds when Trump left office, but together they make clear that the Clause is not a relic: it is justiciable, it binds the President, and it remains part of our living constitutional architecture.

In short: the Emoluments Clause is not incidental, nor does it operate as guidance. It is central and has the force of law. It is an essential piece of the Framers’ anti-corruption design, a clause whose core purpose was debated more than almost any other, and one that still carries constitutional force today. To ignore it would be to ignore the very vision of self-government that animated the founding.

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.”

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. Indeed, I am not aware of any contemporaneous discussion, in the press or otherwise in public, or even in private correspondence, objecting to President Washington’s conduct.

Similarly, I have not discovered any objections made in Congress by anyone, including anti-administration members. Likewise, I have found no antebellum objections in relation to Washington’s conduct. Indeed, it appears that the first objections in relation to Washington’s conduct were only launched into the public’s consciousness after President Trump was elected in 2016. One can only note that these objectors, even if well meaning, were hardly behind a Rawlsian veil of ignorance: that is, the distributional effects of their research were hardly unknown.

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. 

In addition to federal litigation between 2017 and 2021 adjudicating the Foreign Emoluments Clause, over the course of late 2023 and early 2024, private parties brought multiple state and federal lawsuits seeking to remove then-candidate Trump from the 2024 primary and general election ballot for President. (In some states, state elections officials, such as state secretaries of state, filed briefs in support of the plaintiff’s or plaintiffs’ position.) These actions were brought under Section 3 of the Fourteenth Amendment. Like the Foreign Emoluments Clause, Section 3 also uses “office under the United States”-language. A state trial court judge, in Colorado, held that Section 3’s “office under the United States”-language does not reach the presidency. The trial court’s decision was reversed by the Colorado Supreme Court, and the Colorado Supreme Court’s decision was subsequently reversed, on other grounds, by the Supreme Court of the United States. As a result, the state trial court’s decision remains good, persuasive case law—albeit, as a trial court decision, it is not binding precedent in Colorado or elsewhere. (It is interesting to note that the trial court decision held, in a separate analysis, that Section 3’s “officer of the United States”-language does not reach the presidency.) The Colorado trial court decision may be the only decision, which remains good law, by a court of record opining on the scope of the Constitution’s “office under the United States”-language. However, this opinion does not directly address the Constitution’s Foreign Emoluments Clause.