What is the Foreign Emoluments Clause?

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Can Donald Trump be President of the United States and continue to manage his business interests?  The editor-in-chief of one website, quoting lawyers from both the George W. Bush and Barack Obama administrations, is arguing that the Electoral College should not elect Trump president unless he sells his companies and puts the money he makes from the sale in a blind trust.

Article I, Section 9, of the Constitution reads, “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.”

But what does this so-called “Foreign Emoluments Clause” actually mean?

The National Constitution Center tackles this question in a post titled “What is an emolument and why do we care?”

Here is a taste:

An emolument is defined by Merriam-Webster as “the returns arising from office or employment usually in the form of compensation or perquisites.” On Tuesday, the New York Times’ Adam Liptak wrote about a possible debate about how the clause needs to be evaluated as it applies to Trump’s business holdings. (Editor’s note: the newspaper and President-elect Trump are involved in an on-going dispute about its coverage of the former presidential candidate.)

Liptak said that legal experts believed current arrangements, such as the Bank of China renting space in New York’s Trump Tower, could be called into question. But there is also very little precedent for someone with Trump’s business holdings assuming the presidency.

“The Supreme Court has never squarely considered the scope of the clause, and there are no historical analogies to help understand how it should apply to a president who owns a sprawling international business empire,” Liptak said.

He also quoted at length two scholars who wrote about the Foreign Emoluments Clause for the National Constitution Center’s Interactive Constitution project: Zephyr Teachout  a law professor at Fordham and Seth Barrett Tillman, a lecturer at the Maynooth University Department of Law in Ireland.

In a joint essay for Interactive Constitution, the two scholars agreed that the application of the Foreign Emoluments Clause to elected officials is subject to debate.

“The question whether …  the Constitution’s Foreign Emoluments Clause, reaches any or all federal elected positions—i.e., Representative, Senator, Vice President, President, and presidential elector—poses a difficult interpretive challenge,” Teachout and Tillman said.

“George Washington, while President, accepted and kept two diplomatic gifts, but he never asked for or received congressional consent. However, subsequent presidents, such as Andrew Jackson, in similar circumstances, sought congressional consent. Whose practice should we rely on?” they asked.

 

Read the rest, including the full reports from Teachout and Tillman, here.