The Emoluments Clauses of the U.S. Constitution

The Emoluments Clauses of the U.S. Constitution

Updated January 27, 2021
The Emoluments Clauses of the U.S. Constitution
Litigation during the Trump Administration 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.
litigation against former President Donald Trump based on
Officers Subject to the
his 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 Constitution’s text: The Domestic

Emoluments Clause applies to the President, and the
The Foreign Emoluments Clause (art. I, § 9, cl. 8):
“[N]
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 the only district court to consider the issue (in District
Office under the United States, shall be a Member of
of Columbia v. Trump) came to the same 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 district courts to decide this issue (in District of
prohibits federal officers from accepting foreign
Columbia v. Trump and Blumenthal v. Trump) adopted a
emoluments without congressional consent.
broad definition of “emolument” as reaching any benefit,
The purpose of the Domestic Emoluments Clause is to
gain, or advantage, including profits from private market
preserve the President’s independence. Under the Clause,
transactions not arising from an office or employment,
Congress may neither increase nor decrease the President’s
although higher courts have not weighed in on the issue.
compensation during his term, preventing the legislature
Standing to Enforce an Alleged Violation
from using its control over the President’s salary to exert
of the Emoluments Clauses
influence over him. To further preserve presidential
Whether the Emoluments Clauses may be enforced through
independence, the Clause prohibits a sitting President from
civil litigation is an open question. The doctrine of standing
receiving emoluments from federal or state governments,
presents a significant limitation on the ability of public
except for his fixed salary.
officials or private parties to seek judicial enforcement of
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The Emoluments Clauses of the U.S. Constitution
the Emoluments Clauses. Standing is a threshold
government officials at different Trump Organization
constitutional and prudential issue that concerns whether
properties. For example, plaintiffs alleged that the Trump
the person bringing suit has a legal right to a judicial ruling
International Hotel’s continuing lease with the General
on the issues he has raised. Standing is grounded in Article
Services Administration violated the Domestic Emoluments
III of the U.S. Constitution, which limits the exercise of
Clause, and that payments for services made to the Trump
federal judicial power to “cases” and “controversies.”
International Hotel by agents of foreign governments
To establish the standing requirements of Article III, a
violated the Foreign Emoluments Clause. Then-President
plaintiff must identify a personal injury (referred to as an
Trump moved to dismiss the suit, asserting that the
“injury-in-fact”) that is actual or imminent, concrete, and
plaintiffs lacked standing, and that the term “emoluments”
particularized. The injury must additionally be “fairly
did not extend to arm’s-length commercial transactions.
traceable” to allegedly unlawful conduct of the defendant
The district court dismissed the case for lack of standing,
and “likely to be redressed by the requested relief.”
but the U.S. Court of Appeals for the Second Circuit
reversed, holding that the hospitality-industry plaintiffs had
Beyond these constitutional standing requirements, courts
standing based on a theory of competitive harm resulting
have at times recognized a set of prudential principles
from the allegedly unlawful conduct. On January 25, 2021,
relevant to the standing inquiry. In general, prudential
the Supreme Court granted certiorari, vacated the Second
principles require that the plaintiff (1) assert her own legal
Circuit’s judgment without addressing the merits, and
rights and interests (as opposed to those of a third party);
remanded the case to the appellate court with instructions to
(2) complain of injuries that fall within the “zone of
dismiss the case as moot in light of the end of Mr. Trump’s
interests” covered by the legal provision at issue; and (3)
term as President.
not assert what amounts to a “generalized grievance[]”
more appropriately addressed by the representative
In District of Columbia v. Trump, No. 17-1596 (D. Md.),
the District of Columbia and the State of Maryland sued
branches of government.
then-President Trump, alleging violations of the Foreign
Different plaintiffs in Emoluments Clause cases have relied
and Domestic Emoluments Clauses similar to those alleged
on various theories to support standing, with mixed results.
in the CREW lawsuit. Then-President Trump moved to
Private parties, including business competitors, have
dismiss based on standing and a failure to state a claim. In a
asserted injuries in the form of increased competition and
series of rulings, the district court held that the plaintiffs
loss of business from the alleged constitutional violations.
had standing based on alleged injuries related to the Trump
States have alleged injury to proprietary interests connected
International Hotel and that the plaintiffs had stated a claim
to ownership of competing businesses and harm to their
because the term “emolument” reached any “profit, gain, or
“quasi-sovereign” interests in the federal system, among
advantage, of more than de minimis value.” After the full
other things. Some Members of Congress have relied on the
Fourth Circuit declined to order the district court to certify
alleged deprivation of their opportunity to vote on the
an immediate appeal, then-President Trump sought review
acceptance of emoluments under the Foreign Emoluments
from the Supreme Court. Following the swearing-in of
Clause.
President Biden, the Supreme Court vacated the Fourth
Significant Litigation Involving the
Circuit’s judgment and remanded with instructions to
Emoluments Clauses
dismiss the case as moot.
There had been no substantial litigation concerning the
In Blumenthal, et al. v. Trump, No. 17-1154 (D.D.C.), 201
Emoluments Clauses until 2017, when a number of private
Members of Congress alleged violations of the Foreign
parties, state attorneys general, and Members of Congress
Emoluments Clause through then-President Trump’s receipt
filed lawsuits against then-President Trump. These suits
of foreign-government payments at Trump properties,
alleged that his retention of certain business and financial
foreign licensing fees , and regulatory benefits, among other
interests during his presidency—and his failure to seek
things. Then-President Trump moved to dismiss on the
congressional approval of interests relating to foreign
grounds that the plaintiffs lacked standing and that he had
governments—violated the Foreign and Domestic
not received any prohibited “emoluments.” The district
Emoluments Clauses. Three major federal lawsuits
court ruled that the plaintiffs had standing, reasoning that
concerning the Emoluments Clauses were filed. Following
these Members of Congress suffered an injury-in-fact
the swearing-in of President Joe Biden in January 2021,
through the deprivation of a voting opportunity under the
however, the Supreme Court instructed the appellate courts
Foreign Emoluments Clause, and that the plaintiffs had
to dismiss two of the cases as moot, and denied review in a
stated a claim against the President. On appeal, the U.S.
third case that had been dismissed by a lower court. It thus
Court of Appeals for the D.C. Circuit reversed the district
appears that the cases will not yield definitive higher-court
court’s standing decision, holding that the Members lacked
precedent regarding the meaning and scope of the
standing because individual Members of Congress may not
Emoluments Clauses.
sue based on alleged institutional injury to the legislature as
In Citizens for Responsibility & Ethics in Washington
a whole. The Supreme Court denied review in Blumenthal
(CREW) v. Trump, No. 17-CV-458 (S.D.N.Y.), a nonprofit
in October 2020.
government ethics watchdog, along with various
organizations and individuals associated with the hospitality
Kevin J. Hickey, Legislative Attorney
industries in New York and Washington, DC, alleged
Michael A. Foster, Legislative Attorney
violations of the Domestic and Foreign Emoluments
IF11086
Clauses through then-President Trump’s receipt of
payments from the federal government and various foreign

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The Emoluments Clauses of the U.S. Constitution

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