Updated June 27, 2019
The Emoluments Clauses of the U.S. Constitution
Recent litigation involving President Trump has raised a
receiving emoluments from federal or state governments,
number of legal issues concerning formerly obscure
except for his fixed salary.
constitutional provisions that prohibit the acceptance or
The purpose of the Ineligibility Clause is to preserve the
receipt of “emoluments” in certain circumstances. This In
separation of powers and prevent executive influence on the
Focus provides an overview of these constitutional
legislature (and vice versa). To that end, the Clause
provisions, highlighting several unsettled legal areas
prohibits federal officers from simultaneously serving as
concerning their meaning and scope, and reviewing the
Members of Congress. Moreover, a Member of Congress
status of ongoing litigation against President Trump based
may not hold an office if it was established during his
on alleged violations of the Emoluments Clauses.
tenure or if the emoluments of that office were increased
The Constitutional Provisions
during his tenure.
The Constitution mentions emoluments in three provisions,
Officers Subject to the
each sometimes referred to as the “Emoluments Clause”:
Emoluments Clauses
 The Foreign Emoluments Clause (art. I, § 9, cl. 8):
In terms of the persons to whom they apply, the scope of
“[N]o Person holding any Office of Profit or Trust under
the Domestic Emoluments Clause and the Ineligibility
[the United States], shall, without the Consent of the
Clause is clear from the text of the Constitution: The
Congress, accept of any present, Emolument, Office, or
Domestic Emoluments Clause applies to the President, and
Title, of any kind whatever, from any King, Prince, or
the Ineligibility Clause applies to Members of Congress.
foreign State.”
The scope of the Foreign Emoluments Clause is less clear.
 The Domestic Emoluments Clause (a.k.a. the
By its terms, the Clause applies to any person holding an
Presidential Emoluments Clause) (art. II, § 1, cl. 7):
“Office of Profit or Trust under” the United States. The
“The President shall, at stated Times, receive for his
prevailing view of the Clause is that this language reaches
Services, a Compensation which shall neither be
only federal officers, and does not apply to state
encreased nor diminished during the Period for which he
officeholders. According to the Department of Justice’s
shall have been elected, and he shall not receive within
Office of Legal Counsel (OLC), which has a developed
that Period any other Emolument from the United
body of opinions on the Foreign Emoluments Clause,
States, or any of them.”
offices “of profit” include those that receive a salary, while
 The Ineligibility Clause (art. I, § 6, cl. 2): “No Senator
offices “of trust” are those that require discretion,
or Representative shall, during the Time for which he
experience, and skill.
was elected, be appointed to any civil Office under the
There is disagreement, however, over whether elected
Authority of the United States, which shall have been
federal officers, such as the President, are subject to the
created, or the Emoluments whereof shall have been
Foreign Emoluments Clause. Some legal scholars have
encreased during such time; and no Person holding any
argued that, as a matter of original public meaning, the
Office under the United States, shall be a Member of
Foreign Emoluments Clause reaches only appointed
either House during his Continuance in Office.”
officers (and not elected officials). While there is some
Purposes of the Emoluments Clauses
historical evidence in support of this view, other evidence
Each of the Emoluments Clauses has a distinct, but related,
may point in the opposite direction. Moreover, the OLC has
purpose. The purpose of the Foreign Emoluments Clause is
generally presumed that the Foreign Emoluments Clause
to prevent corruption and limit foreign influence on federal
applies to the President, and a recent district court opinion
officers. The Clause grew out of the Framers’ experience
came to the same conclusion.
with the European custom of gift-giving to foreign
The Meaning of the Term “Emolument”
diplomats, which the newly independent republic prohibited
Black’s Law Dictionary defines an “emolument” as an
in the Articles of Confederation. Following that precedent,
“advantage, profit, or gain received as a result of one’s
the Foreign Emoluments Clause prohibits federal officers
employment or one’s holding of office.” There is
from accepting foreign emoluments without congressional
significant debate as to precisely what constitutes an
consent.
emolument within the meaning of the Foreign and
The purpose of the Domestic Emoluments Clause is to
Domestic Emoluments Clauses, particularly as to whether it
preserve the President’s independence. Under the Clause,
includes private, arm’s-length market transactions. The only
Congress may neither increase nor decrease the President’s
two courts to decide this issue adopted a broad definition of
compensation during his term, preventing the legislature
“Emolument” as reaching any benefit, gain, or advantage,
from using its control over the President’s salary to exert
including profits from private market transactions not
influence over him. To further preserve presidential
arising from an office or employ.
independence, the Clause prohibits a sitting President from
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The Emoluments Clauses of the U.S. Constitution
Standing to Enforce an Alleged Violation
government ethics watchdog, along with various
of the Emoluments Clauses
organizations and individuals associated with the food
Whether the Emoluments Clauses may be enforced through
services or hospitality industries in New York and
civil litigation is an open question. The doctrine of standing
Washington, DC, alleges violations of the Domestic and
presents a significant limitation on the ability of public
Foreign Emoluments Clauses through President Trump’s
officials or private parties to seek judicial enforcement of
receipt of payments from the federal government and
the Emoluments Clauses. Standing is a threshold
various foreign government officials at different Trump
constitutional and prudential issue that concerns whether
Organization properties. For example, plaintiffs allege that
the person bringing suit has a legal right to a judicial
the Trump International Hotel’s continuing lease with the
determination of the issues he has raised. Standing is
General Services Administration violates the Domestic
grounded in Article III of the U.S. Constitution, which
Emoluments Clause, and that payments for services made
limits the exercise of federal judicial power to “cases” and
to the Trump International Hotel by agents of foreign
“controversies.”
governments violate the Foreign Emoluments Clause.
In order to establish the standing requirements of Article
President Trump moved to dismiss the suit, asserting that
the plaintiffs lack standing and that the term “emoluments”
III, a plaintiff must identify a personal injury (referred to as
an “injury-in-fact”) that is actual or imminent, concrete, and
does not extend to arm’s-length commercial transactions.
particularized. The injury must additionally be “fairly
The district court dismissed the case for lack of standing on
traceable” to allegedly unlawful conduct of the defendant
December 21, 2017. The plaintiffs’ appeal on the standing
and “likely to be redressed by the requested relief.”
issues is currently pending before the Second Circuit.
Beyond these constitutional standing requirements, courts
In District of Columbia v. Trump, No. 17-1596 (D. Md.),
have at times recognized a set of prudential principles that
the District of Columbia and the State of Maryland sued
are relevant to the standing inquiry. These judicially created
President Trump, alleging violations of the Foreign and
limits stem from the recognition that the “role of the courts
Domestic Emoluments Clauses similar to those in the
in a democratic society” must be “properly limited.”
CREW lawsuit. President Trump moved to dismiss based on
Because such limits are not constitutionally mandated,
standing and a failure to state a claim for receipt of an
“emolument” within the meaning of the constitutional
Congress may modify them if it does so expressly. In
general, prudential principles require that (1) a plaintiff
provisions. On March 28, 2018, the district court ruled that
assert her own legal rights and interests (as opposed to
the plaintiffs have standing, limited to injuries in the
those of a third party); (2) the plaintiff’s complaint fall
District of Columbia, based on alleged injuries related to
within the “zone of interests” covered by the legal provision
the Trump International Hotel. On July 25, 2018, the court
denied President Trump’s motion to dismiss, holding that
at issue; and (3) the plaintiff may not assert what amounts
to a “generalized grievance[]” that is widely shared and
plaintiffs had stated a claim because the President was
more appropriately addressed by the representative
subject to the Foreign Emoluments Clause and the term
“emolument” reached any “profit,
branches of government.
gain, or advantage, of
more than de minimis value, received by [the President],
Different plaintiffs in ongoing Emoluments Clause cases
directly or indirectly, from foreign, the federal, or domestic
have relied on various theories to support standing, with
governments.” These rulings have been appealed to the
mixed results. Private parties, including business
Fourth Circuit, which has not yet issued a decision.
competitors and government ethics watchdog groups, have
asserted injuries in the form of increased competition in
Finally, in Blumenthal, et al. v. Trump, No. 17-1154
their industries and diversion of resources to combat the
(D.D.C.), 201 Members of Congress have alleged violations
of the Foreign Emoluments Clause through the President’s
alleged constitutional violations. States have alleged injury
to proprietary interests connected to ownership of
receipt of foreign-government payments at Trump
competing businesses and harm to their “quasi-sovereign”
properties, foreign licensing fees, and regulatory benefits,
interests in equal status in the federal system, among other
among other things. President Trump moved to dismiss on
things. Members of Congress have relied on the alleged
the grounds that the plaintiffs lack standing and that he has
not received any prohibited “emoluments.”
deprivation of their opportunity to vote on the acceptance of
On September
emoluments under the Foreign Emoluments Clause.
28, 2018, the district court ruled that the plaintiffs have
standing, reasoning that these Members of Congress
Significant Pending Litigation Involving
suffered an injury-in-fact through the deprivation of a
the Emoluments Clauses
voting opportunity to which they are entitled under the
Until recently, there had been no substantial litigation
Foreign Emoluments Clause. On April 30, 2019, the district
concerning the Emoluments Clauses. However, since 2016,
court held that the plaintiffs had stated a claim against the
a number of private parties, state attorneys general, and
President for alleged violations of the Foreign Emoluments
Members of Congress have filed lawsuits against President
Clause, adopting a broad definition of the term
Trump alleging that his retention of certain business and
“Emolument” as reaching any gain, profit, or advantage. On
financial interests during his presidency—and his failure to
June 25, 2019, the district court denied the President’s
seek congressional approval of interests relating to foreign
request to immediately appeal its rulings and permitted
governments—violate the Foreign and Domestic
discovery to proceed.
Emoluments Clauses. Three major federal lawsuits
concerning the Emoluments Clauses are currently pending.
Kevin J. Hickey, Legislative Attorney
In Citizens for Responsibility and Ethics in Washington
Michael A. Foster, Legislative Attorney
(CREW) v. Trump, No. 17-CV-458 (S.D.N.Y.), a nonprofit
IF11086
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The Emoluments Clauses of the U.S. Constitution


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https://crsreports.congress.gov | IF11086 · VERSION 6 · UPDATED

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