Updated February 7, 2020
The Emoluments Clauses of the U.S. Constitution
Recent litigation involving President Trump has raised a
The purpose of the Ineligibility Clause is to preserve the
number of legal issues concerning formerly obscure
separation of powers and prevent executive influence on the
constitutional provisions that prohibit the acceptance or
legislature (and vice versa). To that end, the Clause
receipt of “emoluments” in certain circumstances. This In
prohibits federal officers from simultaneously serving as
Focus provides an overview of these constitutional
Members of Congress. Moreover, a Member of Congress
provisions, highlighting several unsettled legal areas
may not hold an office if it was established during his
concerning their meaning and scope, and reviewing the
tenure or if the emoluments of that office were increased
status of ongoing litigation against President Trump based
during his tenure.
on alleged violations of the Emoluments Clauses.
Officers Subject to the
The Constitutional Provisions
Emoluments Clauses
The Constitution mentions emoluments in three provisions,
In terms of the persons to whom they apply, the scope of
each sometimes referred to as the “Emoluments Clause”:
the Domestic Emoluments Clause and the Ineligibility
Clause is clear from the text of the Constitution: The
The Foreign Emoluments Clause (art. I, § 9, cl. 8):
“[N]
Domestic Emoluments Clause applies to the President, and
o Person holding any Office of Profit or Trust under
the Ineligibility Clause applies to Members of Congress.
[the United States], shall, without the Consent of the
Congress, accept of any present, Emolument, Office, or
The scope of the Foreign Emoluments Clause is less clear.
Title, of any kind whatever, from any King, Prince, or
By its terms, the Clause applies to any person holding an
foreign State.”
“Office of Profit or Trust under” the United States. The
The Domestic Emoluments Clause (a.k.a. the
prevailing view of the Clause is that this language reaches
Presidential Emoluments Clause) (art. II, § 1, cl. 7):
only federal, and not state, officeholders. According to the
“The President shall, at stated Times, receive for his
Department of Justice’s Office of Legal Counsel (OLC),
Services, a Compensation which shall neither be
which has a developed body of opinions on the Foreign
encreased nor diminished during the Period for which he
Emoluments Clause, offices “of profit” include those that
shall have been elected, and he shall not receive within
receive a salary, while offices “of trust” are those that
that Period any other Emolument from the United
require discretion, experience, and skill.
States, or any of them.”
There is disagreement, however, over whether elected
The Ineligibility Clause (art. I, § 6, cl. 2): “No Senator
federal officers, such as the President, are subject to the
or Representative shall, during the Time for which he
Foreign Emoluments Clause. Some legal scholars have
was elected, be appointed to any civil Office under the
argued that, as a matter of original public meaning, the
Authority of the United States, which shall have been
Foreign Emoluments Clause reaches only appointed
created, or the Emoluments whereof shall have been
officers (and not elected officials). While there is some
encreased during such time; and no Person holding any
historical evidence in support of this view, other evidence
Office under the United States, shall be a Member of
may point in the opposite direction. Moreover, the OLC has
either House during his Continuance in Office.”
generally presumed that the Foreign Emoluments Clause
Purposes of the Emoluments Clauses
applies to the President, and a recent district court opinion
Each of the Emoluments Clauses has a distinct, but related,
came to the same conclusion.
purpose. The purpose of the Foreign Emoluments Clause is
The Meaning of the Term “Emolument”
to prevent corruption and limit foreign influence on federal
Black’s Law Dictionary defines an “emolument” as an
officers. The Clause grew out of the Framers’ experience
“advantage, profit, or gain received as a result of one’s
with the European custom of gift-giving to foreign
employment or one’s holding of office.” There is
diplomats, which the Articles of Confederation prohibited.
significant debate as to precisely what constitutes an
Following that precedent, the Foreign Emoluments Clause
emolument within the meaning of the Foreign and
prohibits federal officers from accepting foreign
Domestic Emoluments Clauses, particularly as to whether it
emoluments without congressional consent.
includes private, arm’s-length market transactions. The only
The purpose of the Domestic Emoluments Clause is to
two courts to decide this issue adopted a broad definition of
preserve the President’s independence. Under the Clause,
“Emolument” as reaching any benefit, gain, or advantage,
Congress may neither increase nor decrease the President’s
including profits from private market transactions not
compensation during his term, preventing the legislature
arising from an office or employ, although one of those
from using its control over the President’s salary to exert
decisions was vacated on appeal on other grounds.
influence over him. To further preserve presidential
Standing to Enforce an Alleged Violation
independence, the Clause prohibits a sitting President from
of the Emoluments Clauses
receiving emoluments from federal or state governments,
Whether the Emoluments Clauses may be enforced through
except for his fixed salary.
civil litigation is an open question. The doctrine of standing
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The Emoluments Clauses of the U.S. Constitution
presents a significant limitation on the ability of public
International Hotel by agents of foreign governments
officials or private parties to seek judicial enforcement of
violate the Foreign Emoluments Clause. President Trump
the Emoluments Clauses. Standing is a threshold
moved to dismiss the suit, asserting that the plaintiffs lack
constitutional and prudential issue that concerns whether
standing and that the term “emoluments” does not extend to
the person bringing suit has a legal right to a judicial ruling
arm’s-length commercial transactions. The district court
on the issues he has raised. Standing is grounded in Article
dismissed the case for lack of standing on December 21,
III of the U.S. Constitution, which limits the exercise of
2017. However, on September 13, 2019, the Second Circuit
federal judicial power to “cases” and “controversies.”
reversed, holding that the hospitality-industry plaintiffs had
To establish the standing requirements of Article III, a
standing based on a theory of competitive harm resulting
plaintiff must identify a personal injury (referred to as an
from the allegedly unlawful conduct. The President has
“injury-in-fact”) that is actual or imminent, concrete, and
petitioned for rehearing by the full 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
CREW lawsuit. President Trump moved to dismiss based on
relevant to the standing inquiry. Because such limits are not
standing and a failure to state a claim. On March 28, 2018,
constitutionally mandated, Congress may modify them if it
the district court ruled that the plaintiffs had standing,
does so expressly. In general, prudential principles require
limited to alleged injuries in the District of Columbia
that the plaintiff (1) assert her own legal rights and
related to the Trump International Hotel. On July 25, 2018,
the court denied President Trump’s motion to dismiss,
interests (as opposed to those of a third party); (2) complain
of injuries that fall within the “zone of interests” covered by
holding that plaintiffs had stated a claim because the
the legal provision at issue; and (3) not assert what amounts
President was subject to the Foreign Emoluments Clause
to a “generalized grievance[]” more appropriately addressed
and the term “emolument” reached any “profit, gain, or
by the representative branches of government.
advantage, of more than de minimis value, received by [the
President], directly or indirectly, from foreign, the federal,
Different plaintiffs in ongoing Emoluments Clause cases
or domestic governments.” These rulings were appealed to
have relied on various theories to support standing, with
the Fourth Circuit, which issued a panel decision on July
mixed results. Private parties, including business
10, 2019, reversing the district court on the standing issue
competitors, have asserted injuries in the form of increased
and holding that the plaintiffs lacked standing to pursue
competition and loss of business from the alleged
their claims. However, on October 15, 2019, the full Fourth
constitutional violations. States have alleged injury to
Circuit agreed to rehear the case. Oral argument was heard
proprietary interests connected to ownership of competing
before the full Fourth Circuit on December 12, 2019; the
businesses and harm to their “quasi-sovereign” interests in
court has yet to issue a decision.
the federal system, among other things. Some Members of
Congress have relied on the alleged deprivation of their
Finally, in Blumenthal, et al. v. Trump, No. 17-1154
opportunity to vote on the acceptance of emoluments under
(D.D.C.), 201 Members of Congress have alleged violations
of the Foreign Emoluments Clause through the President’s
the Foreign Emoluments Clause.
Significant Litigation Involving the
receipt of foreign-government payments at Trump
Emoluments Clauses
properties, foreign licensing fees, and regulatory benefits,
among other things. President Trump moved to dismiss on
Until recently, there had been no substantial litigation
the grounds that the plaintiffs lack standing and that he has
concerning the Emoluments Clauses. However, since 2016,
not received any prohibited “emoluments.” On September
a number of private parties, state attorneys general, and
28, 2018, the district court ruled that the plaintiffs have
Members of Congress have filed lawsuits against President
standing, reasoning that these Members of Congress
Trump alleging that his retention of certain business and
suffered an injury-in-fact through the deprivation of a
financial interests during his presidency—and his failure to
voting opportunity under the Foreign Emoluments Clause.
seek congressional approval of interests relating to foreign
On April 30, 2019, the district court held that the plaintiffs
governments—violate the Foreign and Domestic
had stated a claim against the President. On August 21,
Emoluments Clauses. Three major federal lawsuits
2019, the district court certified an immediate appeal and
concerning the Emoluments Clauses have been filed.
stayed the case pending appeal. On February 7, 2020, the
In Citizens for Responsibility and Ethics in Washington
D.C. Circuit reversed the district court’s standing decision,
(CREW) v. Trump, No. 17-CV-458 (S.D.N.Y.), a nonprofit
holding that the Members lacked standing to sue because
government ethics watchdog, along with various
individual Members of Congress may not sue based on
organizations and individuals associated with the hospitality
alleged institutional injury to the legislature as a whole. The
industries in New York and Washington, DC, alleges
D.C. Circuit therefore vacated the district court’s decision
violations of the Domestic and Foreign Emoluments
on the merits and remanded with instructions to dismiss the
Clauses through President Trump’s receipt of payments
complaint.
from the federal government and various foreign
government officials at different Trump Organization
Kevin J. Hickey, Legislative Attorney
properties. For example, plaintiffs allege that the Trump
Michael A. Foster, Legislative Attorney
International Hotel’s continuing lease with the General
IF11086
Services Administration violates the Domestic Emoluments
Clause, and that payments for services made to the Trump
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The Emoluments Clauses of the U.S. Constitution
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