January 30, 2019
The Emoluments Clauses of the U.S. Constitution
Recent litigation involving President Trump has raised a
from using its control over the President’s salary to exert
number of legal issues concerning formerly obscure
influence over him. To further preserve presidential
constitutional provisions that prohibit the acceptance or
independence, the Clause prohibits a sitting President from
receipt of “emoluments” in certain circumstances. This In
receiving emoluments from federal or state governments,
Focus provides an overview of these constitutional
except for his fixed salary.
provisions, highlighting several unsettled legal areas
concerning their meaning and scope, and reviewing the
The purpose of the Ineligibility Clause is to preserve the
status of ongoing litigation against President Trump based
separation of powers and prevent executive influence on the
on alleged violations of the Emoluments Clauses.
legislature (and vice versa). To that end, the Clause
prohibits federal officers from simultaneously serving as
The Constitutional Provisions
Members of Congress. Moreover, a Member of Congress
The Constitution mentions emoluments in three provisions,
may not hold an office if it was established during his
each sometimes referred to as the “Emoluments Clause”:
tenure or if the emoluments of that office were increased
during his tenure.
 The Foreign Emoluments Clause (art. I, § 9, cl. 8):
“[N]o Person holding any Office of Profit or Trust under
Officers Subject to the
[the United States], shall, without the Consent of the
Emoluments Clauses
Congress, accept of any present, Emolument, Office, or
In terms of the persons to whom they apply, the scope of
Title, of any kind whatever, from any King, Prince, or
the Domestic Emoluments Clause and the Ineligibility
foreign State.”
Clause is clear from the text of the Constitution: The

Domestic Emoluments Clause applies to the President, and
The Domestic Emoluments Clause (aka the
the Ineligibility Clause applies to Members of Congress.
Presidential Emoluments Clause) (art. II, § 1, cl. 7):
“The President shall, at stated Times, receive for his
The scope of the Foreign Emoluments Clause is less clear.
Services, a Compensation which shall neither be
By its terms, the Clause applies to any person holding an
encreased nor diminished during the Period for which he
“Office of Profit or Trust under” the United States. The
shall have been elected, and he shall not receive within
prevailing view of the Clause is that this language reaches
that Period any other Emolument from the United
only federal officers, and does not apply to state
States, or any of them.”
officeholders. According to the Department of Justice’s
 The Ineligibility Clause (art. I, § 6, cl. 2): “No Senator
Office of Legal Counsel (OLC), which has a developed
or Representative shall, during the Time for which he
body of opinions on the Foreign Emoluments Clause,
was elected, be appointed to any civil Office under the
offices “of profit” include those that receive a salary, while
Authority of the United States, which shall have been
offices “of trust” are those that require discretion,
created, or the Emoluments whereof shall have been
experience, and skill.
encreased during such time; and no Person holding any
Office under the United States, shall be a Member of
There is disagreement, however, over whether elected
either House during his Continuance in Office.”
federal officers, such as the President, are subject to the
Foreign Emoluments Clause. Some legal scholars have
Purposes of the Emoluments Clauses
argued that, as a matter of original public meaning, the
Each of the Emoluments Clauses has a distinct, but related,
Foreign Emoluments Clause reaches only appointed
purpose. The purpose of the Foreign Emoluments Clause is
officers (and not elected officials). While there is some
to prevent corruption and limit foreign influence on federal
historical evidence in support of this view, other evidence
officers. The Clause grew out of the Framers’ experience
may point in the opposite direction. Moreover, the OLC has
with the European custom of gift-giving to foreign
generally presumed that the Foreign Emoluments Clause
diplomats, which the newly independent republic prohibited
applies to the President, and a recent district court opinion
in the Articles of Confederation. Following that precedent,
came to the same conclusion.
the Foreign Emoluments Clause prohibits federal officers
from accepting foreign emoluments without congressional
The Meaning of the Term “Emolument”
consent.
Black’s Law Dictionary defines an “emolument” as an
“advantage, profit, or gain received as a result of one’s
The purpose of the Domestic Emoluments Clause is to
employment or one’s holding of office.” There is
preserve the President’s independence. Under the Clause,
significant debate as to precisely what constitutes an
Congress may neither increase nor decrease the President’s
“emolument” within the meaning of the Foreign and
compensation during his term, preventing the legislature
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The Emoluments Clauses of the U.S. Constitution
Domestic Emoluments Clauses, particularly as to whether it
governments—violate the Foreign and Domestic
includes private, arm’s-length market transactions.
Emoluments Clauses. Three major federal lawsuits
concerning the Emoluments Clauses are currently pending.
Standing to Enforce an Alleged Violation
of the Emoluments Clauses
In Citizens for Responsibility and Ethics in Washington
Whether the Emoluments Clauses may be enforced through
(CREW) v. Trump, No. 17-CV-458 (S.D.N.Y.), a nonprofit
civil litigation is an open question. The doctrine of standing
government ethics watchdog, along with various
presents a significant limitation on the ability of public
organizations and individuals associated with the food
officials or private parties to seek judicial enforcement of
services or hospitality industries in New York and
the Emoluments Clauses. Standing is a threshold
Washington, DC, alleges violations of the Domestic and
constitutional and prudential issue that concerns whether
Foreign Emoluments Clauses through President Trump’s
the person bringing suit has a legal right to a judicial
receipt of payments from the federal government and
determination of the issues he has raised. Standing is
various foreign government officials at different Trump
grounded in Article III of the U.S. Constitution, which
Organization properties. For example, plaintiffs allege that
limits the exercise of federal judicial power to “cases” and
the Trump International Hotel’s continuing lease with the
“controversies.”
General Services Administration violates the Domestic
Emoluments Clause, and that payments for services made
In order to establish the standing requirements of Article
to the Trump International Hotel by agents of foreign
III, a plaintiff must identify a personal injury (referred to as
governments violate the Foreign Emoluments Clause.
an “injury-in-fact”) that is actual or imminent, concrete, and
President Trump moved to dismiss the suit, asserting that
particularized. The injury must additionally be “fairly
the plaintiffs lack standing and that the term “emoluments”
traceable” to allegedly unlawful conduct of the defendant
does not extend to arm’s-length commercial transactions.
and “likely to be redressed by the requested relief.”
The district court dismissed the case for lack of standing on
December 21, 2017. The plaintiffs’ appeal on the standing
Beyond these constitutional standing requirements, courts
issues is currently pending before the Second Circuit.
have at times recognized a set of prudential principles that
are relevant to the standing inquiry. These judicially created
In District of Columbia v. Trump, No. 17-1596 (D. Md.),
limits stem from the recognition that the “role of the courts
the District of Columbia and the State of Maryland sued
in a democratic society” must be “properly limited.”
President Trump, alleging violations of the Foreign and
Because such limits are not constitutionally mandated,
Domestic Emoluments Clauses similar to those in the
Congress may modify them if it does so expressly. In
CREW lawsuit. President Trump moved to dismiss based on
general, prudential principles require that (1) a plaintiff
standing and a failure to state a claim for receipt of an
assert her own legal rights and interests (as opposed to
“emolument” within the meaning of the constitutional
those of a third party); (2) the plaintiff’s complaint fall
provisions. On March 28, 2018, the district court ruled that
within the “zone of interests” covered by the legal provision
the plaintiffs have standing, limited to injuries in the
at issue; and (3) the plaintiff may not assert what amounts
District of Columbia, based on alleged injuries related to
to a “generalized grievance[]” that is widely shared and
the Trump International Hotel. On July 25, 2018, the court
more appropriately addressed by the representative
denied President Trump’s motion to dismiss, holding that
branches of government.
plaintiffs had stated a claim because the President was
subject to the Foreign Emoluments Clause and the term
Different plaintiffs in ongoing Emoluments Clause cases
“emolument” reached any “profit, gain, or advantage, of
have relied on various theories to support standing, with
more than de minimis value, received by [the President],
mixed results. Private parties, including business
directly or indirectly, from foreign, the federal, or domestic
competitors and government ethics watchdog groups, have
governments.” President Trump has sought to appeal these
asserted injuries in the form of increased competition in
rulings, filing a petition for a writ of mandamus with the
their industries and diversion of resources to combat the
Fourth Circuit; the case is currently stayed pending appeal,
alleged constitutional violations. States have alleged injury
which is set for argument on March 19, 2019.
to proprietary interests connected to ownership of
competing businesses and harm to their “quasi-sovereign”
Finally, in Blumenthal, et al. v. Trump, No. 17-1154
interests in equal status in the federal system, among other
(D.D.C.), 201 Members of Congress have alleged violations
things. Members of Congress have relied on the alleged
of the Foreign Emoluments Clause through the President’s
deprivation of their opportunity to vote on the acceptance of
receipt of foreign-government payments at Trump
emoluments under the Foreign Emoluments Clause.
properties, foreign licensing fees, and regulatory benefits,
among other things. President Trump moved to dismiss on
Significant Pending Litigation Involving
the grounds that the plaintiffs lack standing and that he has
the Emoluments Clauses
not received any prohibited “emoluments.” On September
Until recently, there had been no substantial litigation
28, 2018, the district court ruled that the plaintiffs have
concerning the Emoluments Clauses. However, since 2016,
standing, reasoning that these Members of Congress
a number of private parties, state attorneys general, and
suffered an injury-in-fact through the deprivation of a
Members of Congress have filed lawsuits against President
voting opportunity to which they are entitled under the
Trump alleging that his retention of certain business and
Foreign Emoluments Clause. President Trump’s request to
financial interests during his presidency—and his failure to
appeal that ruling is pending.
seek congressional approval of interests relating to foreign
https://crsreports.congress.gov

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The Emoluments Clauses of the U.S. Constitution
Kevin J. Hickey, Legislative Attorney
IF11086
Michael A. Foster, Legislative Attorney


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