Updated May 26, 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). The Clause thus prohibits
receipt of “emoluments” in certain circumstances. This In
federal officers from simultaneously serving as Members of
Focus provides an overview of these constitutional
Congress. Moreover, a Member of Congress may not hold
provisions, highlighting several unsettled legal areas
an office if it was established during his tenure or if the
concerning their meaning and scope, and reviewing the
emoluments of that office were increased during his tenure.
status of ongoing litigation against President Trump based
Officers Subject to the
on alleged violations of the Emoluments Clauses.
Emoluments Clauses
The Constitutional Provisions
In terms of the persons to whom they apply, the scope of
The Constitution mentions emoluments in three provisions,
the Domestic Emoluments Clause and the Ineligibility
each sometimes referred to as the “Emoluments Clause”:
Clause is clear from the text of the Constitution: The

Domestic Emoluments Clause applies to the President, and
The Foreign Emoluments Clause (art. I, § 9, cl. 8):
“[N]
the Ineligibility Clause applies to Members of Congress.
o Person holding any Office of Profit or Trust under
[the United States], shall, without the Consent of the
The scope of the Foreign Emoluments Clause is less clear.
Congress, accept of any present, Emolument, Office, or
By its terms, the Clause applies to any person holding an
Title, of any kind whatever, from any King, Prince, or
“Office of Profit or Trust under” the United States. The
foreign State.”
prevailing view of the Clause is that this language reaches
 The Domestic Emoluments Clause (a.k.a. the
only federal, and not state, officeholders. According to the
Presidential Emoluments Clause) (art. II, § 1, cl. 7):
Department of Justice’s Office of Legal Counsel (OLC),
“The President shall, at stated Times, receive for his
which has a developed body of opinions on the Foreign
Services, a Compensation which shall neither be
Emoluments Clause, offices “of profit” include those that
encreased nor diminished during the Period for which he
receive a salary, while offices “of trust” are those that
shall have been elected, and he shall not receive within
require discretion, experience, and skill.
that Period any other Emolument from the United
There is disagreement, however, over whether elected
States, or any of them.”
federal officers, such as the President, are subject to the
 The Ineligibility Clause (art. I, § 6, cl. 2): “No Senator
Foreign Emoluments Clause. Legal scholars have debated
or Representative shall, during the Time for which he
whether, as a matter of original public meaning, the Foreign
was elected, be appointed to any civil Office under the
Emoluments Clause reaches only appointed officers (and
Authority of the United States, which shall have been
not elected officials). The OLC has generally presumed that
created, or the Emoluments whereof shall have been
the Foreign Emoluments Clause applies to the President,
encreased during such time; and no Person holding any
and a recent district court opinion came to the same
Office under the United States, shall be a Member of
conclusion.
either House during his Continuance in Office.”
The Meaning of the Term “Emolument”
Purposes of the Emoluments Clauses
Black’s Law Dictionary defines an “emolument” as an
Each of the Emoluments Clauses has a distinct, but related,
“advantage, profit, or gain received as a result of one’s
purpose. The purpose of the Foreign Emoluments Clause is
employment or one’s holding of office.” There is
to prevent corruption and limit foreign influence on federal
significant debate as to precisely what constitutes an
officers. The Clause grew out of the Framers’ experience
emolument within the meaning of the Foreign and
with the European custom of gift-giving to foreign
Domestic Emoluments Clauses, particularly as to whether it
diplomats, which the Articles of Confederation prohibited.
includes private, arm’s-length market transactions. The only
Following that precedent, the Foreign Emoluments Clause
two courts to decide this issue adopted a broad definition of
prohibits federal officers from accepting foreign
“Emolument” as reaching any benefit, gain, or advantage,
emoluments without congressional consent.
including profits from private market transactions not
The purpose of the Domestic Emoluments Clause is to
arising from an office or employ, although one of those
preserve the President’s independence. Under the Clause,
decisions was vacated on appeal on other grounds.
Congress may neither increase nor decrease the President’s
Standing to Enforce an Alleged Violation
compensation during his term, preventing the legislature
of the Emoluments Clauses
from using its control over the President’s salary to exert
Whether the Emoluments Clauses may be enforced through
influence over him. To further preserve presidential
civil litigation is an open question. The doctrine of standing
independence, the Clause prohibits a sitting President from
presents a significant limitation on the ability of public
receiving emoluments from federal or state governments,
officials or private parties to seek judicial enforcement of
except for his fixed salary.
the Emoluments Clauses. Standing is a threshold
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The Emoluments Clauses of the U.S. Constitution
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 related to the Trump International
that the plaintiff (1) assert her own legal rights and interests
Hotel. On July 25, 2018, the court denied President
Trump’s motion to dismiss, holding that plaintiffs had
(as opposed to those of a third party); (2) complain of
injuries that fall within the “zone of interests” covered by
stated a claim because the President was subject to the
the legal provision at issue; and (3) not assert what amounts
Foreign Emoluments Clause and the term “emolument”
to a “generalized grievance[]”
reached any “profit, gain, or advantage, of more than
more appropriately addressed
de
by the representative branches of government.
minimis value.” President Trump moved to certify an
interlocutory appeal of these rulings, but the district court
Different plaintiffs in ongoing Emoluments Clause cases
declined to certify such an appeal. President Trump
have relied on various theories to support standing, with
therefore petitioned the Fourth Circuit for a writ of
mixed results. Private parties, including business
mandamus. On July 10, 2019, a Fourth Circuit panel
competitors, have asserted injuries in the form of increased
granted the writ and reversed the district court, holding that
competition and loss of business from the alleged
the plaintiffs lacked standing to pursue their claims. On
constitutional violations. States have alleged injury to
May 14, 2020, after vacating that panel decision and
proprietary interests connected to ownership of competing
agreeing to hear the case en banc, the full Fourth Circuit
businesses and harm to their “quasi-sovereign” interests in
held that President Trump had not established a clear and
the federal system, among other things. Some Members of
indisputable right to mandamus relief, and therefore denied
Congress have relied on the alleged deprivation of their
the petition for mandamus. The effect of the denial is to
opportunity to vote on the acceptance of emoluments under
return the case to the district court for further proceedings,
the Foreign Emoluments Clause.
unless the President seeks review from the Supreme Court.
Significant Litigation Involving the
Emoluments Clauses
In Blumenthal, et al. v. Trump, No. 17-1154 (D.D.C.), 201
Members of Congress allege violations of the Foreign
Until recently, there had been no substantial litigation
Emoluments Clause through the President’s receipt of
concerning the Emoluments Clauses. However, since 2016,
foreign-government payments at Trump properties, foreign
a number of private parties, state attorneys general, and
licensing fees, and regulatory benefits, among other things.
Members of Congress have filed lawsuits against President
President Trump moved to dismiss on the grounds that the
Trump, alleging that his retention of certain business and
plaintiffs lack standing and that he has not received any
financial interests during his presidency—and his failure to
prohibited “emoluments.” On September 28, 2018, the
seek congressional approval of interests relating to foreign
district court ruled that the plaintiffs have standing,
governments—violate the Foreign and Domestic
reasoning that these Members of Congress suffered an
Emoluments Clauses. Three major federal lawsuits
injury-in-fact through the deprivation of a voting
concerning the Emoluments Clauses have been filed.
opportunity under the Foreign Emoluments Clause. On
In Citizens for Responsibility and Ethics in Washington
April 30, 2019, the district court held that the plaintiffs had
(CREW) v. Trump, No. 17-CV-458 (S.D.N.Y.), a nonprofit
stated a claim against the President. On August 21, 2019,
government ethics watchdog, along with various
the district court certified an immediate appeal. On
organizations and individuals associated with the hospitality
February 7, 2020, the D.C. Circuit reversed the district
industries in New York and Washington, DC, alleges
court’s standing decision, holding that the Members lacked
violations of the Domestic and Foreign Emoluments
standing because individual Members of Congress may not
Clauses through President Trump’s receipt of payments
sue based on alleged institutional injury to the legislature as
from the federal government and various foreign
a whole. The D.C. Circuit therefore vacated the district
government officials at different Trump Organization
court’s decision on the merits and remanded with
properties. For example, plaintiffs allege that the Trump
instructions to dismiss the complaint.
International Hotel’s continuing lease with the General
Services Administration violates the Domestic Emoluments
Kevin J. Hickey, Legislative Attorney
Clause, and that payments for services made to the Trump
Michael A. Foster, Legislative Attorney
International Hotel by agents of foreign governments
IF11086
violate the Foreign Emoluments Clause. President Trump
moved to dismiss the suit, asserting that the plaintiffs lack
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The Emoluments Clauses of the U.S. Constitution


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https://crsreports.congress.gov | IF11086 · VERSION 12 · UPDATED

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