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The Foreign Emoluments Clause

Published: December 7, 2017

What is the Foreign Emoluments Clause?

 

The following provision of the U.S. Constitution is known as the “Foreign Emoluments Clause”:

 

“[N]o 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.”

- Art. I, § 9, cl. 8 of the U.S. Constitution

What Does This Mean?

 

The clause prevents members of the national government from receiving gifts or payments from a foreign government without the permission of Congress.

Why Was This Clause Inserted into the Constitution?

The acceptance of gifts from a foreign state may cause a U.S. policymaker to prioritize the interests of the gift-giver over the interests of Americans.

In other words, foreign states and monarchs could try to bribe American policymakers.

At the time the Constitution was drafted, there was particular concern about the capacity of ambassadors stationed overseas to be bribed by foreign powers.

 

To prevent such foreign influences from corrupting government, the Foreign Emoluments Clause was inserted into the Constitution.

But Uncertainties Remain

 

Because the courts have never interpreted the clause and fleshed out its meaning, uncertainty remains over exactly who it applies to and what counts as an “emolument.”

 

For example, does the clause apply only to payments and gifts given to a public official or does it also apply to payments made to a business owned by a public official?

 

One could certainly argue that payments by a foreign state to a business owned an American public official may sway her/his decision-making. However, the clause makes no explicit mention of payments to businesses being forbidden, leaving the question unanswered.

 

Several lawsuits have recently been filed against Pres. Trump alleging that he is currently in violation of the clause for accepting such payments to his businesses.

 

The outcomes of these suits may clarify the scope of the Foreign Emoluments Clause.