Updated July 11, 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, and not state, officeholders. According to the
encreased nor diminished during the Period for which he
Department of Justice’s Office of Legal Counsel (OLC),
shall have been elected, and he shall not receive within
which has a developed body of opinions on the Foreign
that Period any other Emolument from the United
Emoluments Clause, offices “of profit” include those that
States, or any of them.”
receive a salary, while offices “of trust” are those that
The Ineligibility Clause (art. I, § 6, cl. 2): “No Senator
require discretion, experience, and skill.
or Representative shall, during the Time for which he
There is disagreement, however, over whether elected
was elected, be appointed to any civil Office under the
federal officers, such as the President, are subject to the
Authority of the United States, which shall have been
Foreign Emoluments Clause. Some legal scholars have
created, or the Emoluments whereof shall have been
argued that, as a matter of original public meaning, the
encreased during such time; and no Person holding any
Foreign Emoluments Clause reaches only appointed
Office under the United States, shall be a Member of
officers (and not elected officials). While there is some
either House during his Continuance in Office.”
historical evidence in support of this view, other evidence
Purposes of the Emoluments Clauses
may point in the opposite direction. Moreover, the OLC has
Each of the Emoluments Clauses has a distinct, but related,
generally presumed that the Foreign Emoluments Clause
purpose. The purpose of the Foreign Emoluments Clause is
applies to the President, and a recent district court opinion
to prevent corruption and limit foreign influence on federal
came to the same conclusion.
officers. The Clause grew out of the Framers’ experience
The Meaning of the Term “Emolument”
with the European custom of gift-giving to foreign
Black’s Law Dictionary defines an “emolument” as an
diplomats, which the Articles of Confederation prohibited.
“advantage, profit, or gain received as a result of one’s
Following that precedent, the Foreign Emoluments Clause
employment or one’s holding of office.” There is
prohibits federal officers from accepting foreign
significant debate as to precisely what constitutes an
emoluments without congressional 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
https://crsreports.congress.gov
The Emoluments Clauses of the U.S. Constitution
Standing to Enforce an Alleged Violation
Foreign Emoluments Clauses through President Trump’s
of the Emoluments Clauses
receipt of payments from the federal government and
Whether the Emoluments Clauses may be enforced through
various foreign government officials at different Trump
civil litigation is an open question. The doctrine of standing
Organization properties. For example, plaintiffs allege that
presents a significant limitation on the ability of public
the Trump International Hotel’s continuing lease with the
officials or private parties to seek judicial enforcement of
General Services Administration violates the Domestic
the Emoluments Clauses. Standing is a threshold
Emoluments Clause, and that payments for services made
constitutional and prudential issue that concerns whether
to the Trump International Hotel by agents of foreign
the person bringing suit has a legal right to a judicial ruling
governments violate the Foreign Emoluments Clause.
on the issues he has raised. Standing is grounded in Article
President Trump moved to dismiss the suit, asserting that
III of the U.S. Constitution, which limits the exercise of
the plaintiffs lack standing and that the term “emoluments”
federal judicial power to “cases” and “controversies.”
does not extend to arm’s-length commercial transactions.
In order to establish the standing requirements of Article
The district court dismissed the case for lack of standing on
December 21, 2017. The plaintiffs’ appeal
III, a plaintiff must identify a personal injury (referred to as
on the standing
an “injury-in-fact”) that is actual or imminent, concrete, and
issues is currently pending before the Second Circuit.
particularized. The injury must additionally be “fairly
In District of Columbia v. Trump, No. 17-1596 (D. Md.),
traceable” to allegedly unlawful conduct of the defendant
the District of Columbia and the State of Maryland sued
and “likely to be redressed by the requested relief.”
President Trump, alleging violations of the Foreign and
Beyond these constitutional standing requirements, courts
Domestic Emoluments Clauses similar to those in the
have at times recognized a set of prudential principles that
CREW lawsuit. President Trump moved to dismiss based on
are relevant to the standing inquiry. Because such limits are
standing and a failure to state a claim. On March 28, 2018,
not constitutionally mandated, Congress may modify them
the district court ruled that the plaintiffs had standing,
if it does so expressly. In general, prudential principles
limited to injuries in the District of Columbia, based on
require that (1) a plaintiff assert her own legal rights and
alleged injuries related to the Trump International Hotel.
interests (as opposed to those of a third party); (2) the
On July 25, 2018, the court denied President Trump’s
plaintiff’s complaint fall within the “zone of interests”
motion to dismiss, holding that plaintiffs had stated a claim
covered by the legal provision at issue; and (3) the plaintiff
because the President was subject to the Foreign
may not assert what amounts to a “generalized grievance[]”
Emoluments Clause and the term “emolument” reached any
“profit, gain, or advantage, of more than
that is more appropriately addressed by the representative
de minimis value,
branches of government.
received by [the President], directly or indirectly, from
foreign, the federal, or domestic governments.” These
Different plaintiffs in ongoing Emoluments Clause cases
rulings were appealed to the Fourth Circuit, which issued a
have relied on various theories to support standing, with
decision on July 10, 2019, reversing the district court on the
mixed results. Private parties, including business
standing issue. The Fourth Circuit panel concluded that the
competitors and government ethics watchdog groups, have
plaintiffs lacked standing to pursue their claims and
asserted injuries in the form of increased competition in
remanded the case to the district court with instructions to
their industries and diversion of resources to combat the
dismiss. There remains the possibility, however, that the
alleged constitutional violations. States have alleged injury
plaintiffs could petition for rehearing by the full Fourth
to proprietary interests connected to ownership of
Circuit or seek review from the Supreme Court.
competing businesses and harm to their “quasi-sovereign”
interests in equal status in the federal system, among other
Finally, in Blumenthal, et al. v. Trump, No. 17-1154
things. Members of Congress have relied on the alleged
(D.D.C.), 201 Members of Congress have alleged violations
of the Foreign Emoluments Clause through the President’s
deprivation of their opportunity to vote on the acceptance of
emoluments under the Foreign Emoluments Clause.
receipt of foreign-government payments at Trump
properties, foreign licensing fees, and regulatory benefits,
Significant Litigation Involving the
among other things. President Trump moved to dismiss on
Emoluments Clauses
the grounds that the plaintiffs lack standing and that he has
Until recently, there had been no substantial litigation
not received any prohibited “emoluments.” On September
concerning the Emoluments Clauses. However, since 2016,
28, 2018, the district court ruled that the plaintiffs have
a number of private parties, state attorneys general, and
standing, reasoning that these Members of Congress
Members of Congress have filed lawsuits against President
suffered an injury-in-fact through the deprivation of a
Trump alleging that his retention of certain business and
voting opportunity under the Foreign Emoluments Clause.
financial interests during his presidency—and his failure to
On April 30, 2019, the district court held that the plaintiffs
seek congressional approval of interests relating to foreign
had stated a claim against the President for alleged
governments—violate the Foreign and Domestic
violations of the Foreign Emoluments Clause, adopting a
Emoluments Clauses. Three major federal lawsuits
broad definition of the term “Emolument” as reaching any
concerning the Emoluments Clauses have been filed.
gain, profit, or advantage. On June 25, 2019, the district
In Citizens for Responsibility and Ethics in Washington
court denied the President’s request to immediately appeal
(CREW) v. Trump, No. 17-CV-458 (S.D.N.Y.), a nonprofit
its rulings and permitted discovery to proceed. On July 8,
government ethics watchdog, along with various
2019, the President filed a petition directly to the D.C.
organizations and individuals associated with the food
Circuit requesting that it stay the district court’s
services or hospitality industries in New York and
proceedings and review its rulings. That petition is pending.
Washington, DC, alleges violations of the Domestic and
https://crsreports.congress.gov
The Emoluments Clauses of the U.S. Constitution
Michael A. Foster, Legislative Attorney
Kevin J. Hickey, Legislative Attorney
IF11086
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https://crsreports.congress.gov | IF11086 · VERSION 7 · UPDATED