{ "id": "R45992", "type": "CRS Report", "typeId": "REPORTS", "number": "R45992", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 607155, "date": "2019-11-05", "retrieved": "2019-11-05T23:12:56.710613", "title": "The Emoluments Clauses and the Presidency: Background and Recent Developments", "summary": "Recent litigation involving the President has raised legal issues concerning formerly obscure constitutional provisions that prohibit the acceptance or receipt of \u201cemoluments\u201d in certain circumstances. First, the Foreign Emoluments Clause (Article I, Section 9, Clause 8 of the Constitution) prohibits any person \u201cholding any Office of Profit or Trust under\u201d the United States from accepting \u201cany present, Emolument, Office, or Title, of any kind whatever\u201d from a foreign government unless Congress consents. Second, the Domestic Emoluments Clause (Article II, Section 1, Clause 7) prohibits the President from receiving \u201cany other Emolument [beyond a fixed salary] from the United States, or any of them.\u201d These two provisions (collectively, the Emoluments Clauses) have distinct, but related, purposes. The purpose of the Foreign Emoluments Clause is to prevent corruption and limit foreign influence on federal officers. The Clause grew out of the Framers\u2019 experience with the European custom of gift-giving to foreign diplomats, which the Articles of Confederation prohibited. The purpose of the Domestic Emoluments Clause is to preserve the President\u2019s independence by preventing the legislature and the states from exerting influence over him \u201cby appealing to his avarice.\u201d\nAn important threshold issue in examining the Emoluments Clauses is determining who is subject to their terms. The scope of the Domestic Emoluments Clause is clear: it applies to \u201c[t]he President.\u201d The scope of the Foreign Emoluments Clause is less clear. By its terms, the Clause applies to any person holding an \u201cOffice of Profit or Trust under\u201d the United States. The prevailing view is that this language reaches only federal, and not state, officeholders. According to the Department of Justice\u2019s Office of Legal Counsel (OLC), which has a developed body of opinions on the Foreign Emoluments Clause, offices \u201cof profit\u201d include those that receive a salary, while offices \u201cof trust\u201d require discretion, experience, and skill. There is some disagreement over whether elected federal officers, such as the President, are subject to the Foreign Emoluments Clause. Some legal scholars have argued that, as a matter of original public meaning, the Foreign Emoluments Clause reaches only appointed officers (and not elected officials). Other legal scholars dispute that argument, however, and OLC has presumed that the Foreign Emoluments Clause applies to the President. A recent district court opinion on this issue came to the same conclusion.\nAnother key disputed issue over the scope of the Emoluments Clauses is what constitutes an \u201cemolument.\u201d This question has divided legal scholars, and federal courts have only recently addressed the issue. Debate has largely centered on whether the Emoluments Clauses restrict private, arm\u2019s-length market transactions between covered officials and governments, or whether the Clauses are limited to office- or employment-based compensation. For its part, OLC has at times appeared to adopt a fact-specific, functional view of the Clauses, focusing on the purpose and potential effect of the specific payments or benefits at issue as they relate to the Clauses\u2019 goals of limiting influence on the President and federal officers. The only two courts to decide the issue adopted a broad definition of \u201cemolument\u201d as reaching any benefit, gain, or advantage of more than de minimis value, but those decisions are not final.\nCourts are divided over whether the Emoluments Clauses may be enforced through civil litigation. Among other things, the doctrine of standing may present a significant limitation on the ability of public officials or private parties to seek judicial enforcement of the Emoluments Clauses. Standing, grounded in Article III of the Constitution, requires a plaintiff to identify a personal injury (known as an \u201cinjury-in-fact\u201d) that is actual or imminent, concrete, and particularized. The injury must also be \u201cfairly traceable\u201d to allegedly unlawful conduct of the defendant and \u201clikely to be redressed by the requested relief.\u201d Different plaintiffs in ongoing Emoluments Clause cases have relied on various theories to support standing, with mixed results. States and private parties, including business competitors to an office holder, have asserted injuries in the form of increased competition and loss of business from the alleged constitutional violations. Some Members of Congress have relied on the alleged deprivation of their opportunity to vote on the acceptance of emoluments under the Foreign Emoluments Clause to support their standing to sue. The lower courts have reached different conclusions on these standing issues, and the Supreme Court has yet to weigh in on the matter. If the courts lack jurisdiction to enforce the Emoluments Clauses, the political process would be the remaining avenue to enforce the provisions, such as through legislation or political pressure. The adequacy of those options is, however, disputed.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/R45992", "sha1": "d34ac9d709f4ee15b9b44c1ac24a2d3418588109", "filename": "files/20191105_R45992_d34ac9d709f4ee15b9b44c1ac24a2d3418588109.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/R45992", "sha1": "03a2bade8b9198a515c5d7f08d12b5b1e28b505a", "filename": "files/20191105_R45992_03a2bade8b9198a515c5d7f08d12b5b1e28b505a.pdf", "images": {} } ], "topics": [] } ], "topics": [ "Constitutional Questions" ] }