Article 1, Section 9, Clause 8 — Historical Background On Foreign Emoluments Clause

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Article I, Section 9, Clause 8:

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.

The Foreign Emoluments Clause’s basic purpose is to prevent corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based on “the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.” [hereinafter Farrand’s Records] (Madison’s notes). ") The Convention approved the Clause unanimously without noted debate. During the ratification debates, Edmund Randolph of Virginia, a key figure at the Convention, explained that the Foreign Emoluments Clause was intended to “prevent corruption” by “prohibit[ing] any one in office from receiving or holding any emoluments from foreign states.” ( “[The Foreign Emoluments Clause] is founded in a just jealousy of foreign influence of every sort.” ). ")

The Foreign Emoluments Clause reflected the Framers’ experience with the then-customary European practice of giving gifts to foreign diplomats.; Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution, 52 Ga. L. Rev. 1, 37, 43–45 (2017); Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U.L. Rev. Colloquy 30, 33–35 (2012). ") Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651, (citing 4 John Bassett Moore, A Digest of International Law 579 (1906)). ") the Articles of Confederation provided: “any person holding any office of profit or trust under the United States, or any of them” shall not “accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.; Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U.L. Rev. Colloquy 1, 5 (2012) (same). ")

During the Articles period, American diplomats struggled with how to balance their legal obligations and desire to avoid the appearance of corruption, against prevailing European norms and the diplomats’ wish to not offend their host country. A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause, involved the King of France’s gift of an opulent snuff box to Benjamin Franklin. Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift.. ") Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.

The Foreign Emoluments Clause thus provides a role for Congress in determining the propriety of foreign emoluments. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills, ( “In the past, the approval of Congress, as required by [the Foreign Emoluments Clause], has taken the form of public or private bills, authorizing an individual or group of individuals to accept decorations or gifts.” ). ") or by enacting general rules governing the receipt of gifts by federal officers from foreign governments. (authorizing certain named persons to accept presents from foreign governments, and requiring that “hereafter, any presents, decoration, or other thing, which shall be conferred or presented by any foreign government to any officer of the United States . . . shall be tendered through the Department of State” ). ") For example, in 1966, Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of the United States in some cases. (codified as amended at 5 U.S.C. § 7342). ")

Several Presidents in the nineteenth century—such as Andrew Jackson, (January 19, 1830 letter from President Jackson to the Senate and House of Representatives stating that the Constitution prohibited his acceptance of a medal from Simon Bolivar, and therefore placing the medal “at disposal of Congress” ). ") Martin Van Buren, (joint resolution of Congress authorizing President Van Buren to dispose of presents given to him by the Imam of Muscat and deposit the proceeds in the Treasury). ") John Tyler, (authorizing sale of two horses presented to the United States by the Imam of Muscat); see also Teachout, supra note 5, at 42 (discussing the Van Buren and Tyler precedents); Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U.L. Rev. Colloquy 180, 190 (2013) (same). ") and Benjamin Harrison (congressional resolution authorizing delivery of Brazilian and Spanish medals to former President Benjamin Harrison). ") —notified Congress of foreign presents they received, and either placed the gifts at Congress’s disposal or obtained consent for their acceptance. Other nineteenth century Presidents treated presents they received as “gifts to the United States, rather than as personal gifts.” . ") Thus, in one instance, President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the Department of State. …