Landlord and Tenant: The Trump Administration’s Oversight of the Trump International Hotel Lease

Landlord and Tenant: The Trump Administration’s Oversight of the Trump International Hotel Lease

Statement of
Michael A. Foster
Legislative Attorney
Before
Committee on Transportation and Infrastructure
Subcommittee on Economic Development, Public Buildings, and
Emergency Management
U.S. House of Representatives
Hearing on
“Landlord and Tenant: The Trump
Administration’s Oversight of the Trump
International Hotel Lease”
September 25, 2019
Congressional Research Service
https://crsreports.congress.gov
TE10037

Congressional Research Service
1
Chair Titus, Ranking Member Meadows, and Members of the Subcommittee:
My name is Michael Foster. I am a Legislative Attorney in the American Law Division of the
Congressional Research Service (CRS). Thank you for inviting me to testify on behalf of CRS to provide
background information on the Emoluments Clauses of the U.S. Constitution and recent litigation
concerning those provisions.1
The Constitution contains three provisions that mention the term “emolument”:
1. The Foreign Emoluments Clause: Article I, Section 9, Clause 8 provides that “no Person
holding any Office of Profit or Trust under [the United States], shall, without the Consent of
Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State”;2
2. The Domestic Emoluments Clause: Article II, Section 1, Clause 7 provides that “[t]he President
shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased
nor diminished during the Period for which he shall have been elected, and he shall not receive
within that Period any other Emolument from the United States, or any of them”;3 and
3. The Ineligibility Clause: Article I, Section 6, Clause 2 provides (among other things) that no
Member of Congress shall “be appointed” during his or her term “to any civil Office under the
Authority of the United States, which shall have been created, or the Emoluments whereof shall
have been encreased during such time[.]”4
The first two Clauses are the focus of this testimony.5 For most of their history, the Foreign and Domestic
Emoluments Clauses (collectively, the “Emoluments Clauses” or the “Clauses”) were little discussed and
largely unexamined by the courts.6 But recent litigation involving President Trump has led to multiple
federal court decisions more fully addressing the Clauses’ scope and application.7 This testimony will
accordingly provide an overview of the Emoluments Clauses as they relate to the President, focusing on
the legal issues that have been central to the recent litigation. More specifically, this testimony will
discuss (1) the history and purpose of the Clauses; (2) whether the President is a person holding an
“Office of Profit or Trust under [the United States]” for purposes of the Foreign Emoluments Clause;
(3) the scope of the Emoluments Clauses, focusing specifically on disputes over the breadth of the term
“emolument”; and (4) whether the Clauses may be enforced in court and by whom.

1 Legislative Attorney Kevin Hickey assisted in preparing this written testimony.
2 U.S. CONST. art. I, § 9, cl. 8.
3 Id. art. II, § 1, cl. 7.
4 Id. art. I, § 6, cl. 2. This provision is sometimes referred to by other names, such as the “Legislative Emoluments Clause.” E.g.,
Amandeep S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 MINN. L. REV. 639, 658 (2017).
5 The Ineligibility Clause is not at issue in the litigation and is not further discussed in this testimony except as it relates to
interpretation of the other Clauses.
6 See Julie Bykowicz & Mark Sherman, Why Conflict of Interest Rules Apply Differently to the President, PBS NEWS HOUR (Jan.
9, 2016), https://www.pbs.org/newshour/politics/conflict-interest-rules-apply-differently-president (“Arthur Hellman, an ethicist
at the University of Pittsburgh, said he does not believe any U.S. court, much less the Supreme Court, has ever interpreted the
emoluments clause.”). Prior to the court cases discussed in this testimony, a few judicial decisions briefly discussed the Foreign
Emoluments Clause without extensively analyzing its scope. E.g., U.S. ex rel. New v. Rumsfeld, 350 F. Supp. 2d 80, 101-02
(D.D.C. 2004) (rejecting argument that order to wear U.N. insignia on uniform amounted to Foreign Emoluments Clause
violation and noting apparent lack of “Supreme Court precedent defining the scope and application of the clause”), aff’d, 448
F.3d 403, 410 (D.C. Cir. 2006) (summarily affirming).
7 See generally In re Trump, 928 F.3d 360 (4th Cir. 2019); Blumenthal v. Trump, 382 F. Supp. 3d 77 (D.D.C. 2019); Citizens for
Responsibility & Ethics in Wash. v. Trump, No. 18-474, slip op. (2d Cir. Sept. 13, 2019).
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History and Purpose of the Emoluments Clauses
Founding Era
Foreign Emoluments Clause. The basic purpose of the Foreign Emoluments Clause is to prevent
corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles
Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based
on “the necessity of preserving foreign Ministers & other officers of the U.S. independent of external
influence.”8 The Convention approved the Clause unanimously without noted debate.9 During the
ratification debates, Edmund Randolph of Virginia—a key figure at the Convention—explained that the
Foreign Emoluments Clause was intended to “prevent corruption” by “prohibit[ing] any one in office
from receiving or holding any emoluments from foreign states.”10
The Clause reflected the Framers’ experience with the then-customary European practice of giving gifts to
foreign diplomats.11 Following the example of the Dutch Republic, which prohibited its ministers from
receiving foreign gifts in 1651,12 the Articles of Confederation provided that “any person holding any
office of profit or trust under the United States, or any of them” shall not “accept of any present,
emolument, office, or title of any kind whatever, from any king, prince, or foreign state.”13 The Foreign
Emoluments Clause largely tracks this language from the Articles, although there are some differences.14
During the Articles period, American diplomats struggled with how to balance their legal obligations and
desire to avoid the appearance of corruption, against prevailing European norms and the diplomats’ wish
to not offend their host country.15 A well-known example from this period, which appears to have
influenced the Framers of the Emoluments Clause,16 involved the King of France’s gift of an opulent
snuff box to Benjamin Franklin.17 Concerned that receipt of this gift would be perceived as corrupting and

8 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 389 (Max Farrand ed., 1911) [hereinafter FARRAND’S RECORDS]
(Madison’s notes).
9 Id.
10 See 3 FARRAND’S RECORDS 327; accord JOSEPH STORY, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 215-16
(1st ed. 1833) (“[The Foreign Emoluments Clause] is founded in a just jealousy of foreign influence of every sort.”)
11 See generally Deborah Samuel Sills, The Foreign Emoluments Clause: Protecting Our National Security Interests, 26 J.L. &
POL’Y 63, 69-72 (2018); Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution, 52 GA. L. REV. 1, 37,
43-45 (2017); Zephyr Teachout, Gifts, Offices, and Corruption, 107 NW. U.L. REV. COLLOQUY 30, 33-35 (2012).
12 See ZEPHYR TEACHOUT, CORRUPTION IN AMERICA: FROM BENJAMIN FRANKLIN’S SNUFF BOX TO CITIZENS UNITED 20-21 (2014)
(citing 4 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 579 (1906)).
13 ARTICLES OF CONFEDERATION of 1781, art. VI, para. 1.
14 Two differences are notable. First, unlike the corresponding provision in the Articles, the Foreign Emoluments Clause
expressly provides that Congress may consent to a federal official’s receipt of emoluments. See U.S. CONST. art. I, § 9, cl. 8.
Second, the Articles expressly reached state officeholders as well as federal ones, while the Foreign Emoluments Clause does
not. See ARTICLES OF CONFEDERATION of 1781, art. VI, para. 1. See also Natelson, supra note 11, at 37-38 (discussing these
differences); Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 NW. U.
L. REV. COLLOQUY 399, 405 (2015) (same).
15 See generally TEACHOUT, supra note 12, 20-26; Natelson, supra note 11, at 43-45.
16 See 3 FARRAND’S RECORDS 327 (statement of Edmund Randolph) (“An accident which actually happened, operated in
producing the [Foreign Emoluments Clause]. A box was presented to our ambassador by the king of [France]. It was thought
proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any
emoluments from foreign states. . . . [I]f at that moment, when we were in harmony with the king of France, we had supposed
that he was corrupting our ambassador, it might have disturbed that confidence . . . .”). It is unclear whether Randolph was
referring to the snuff box gifted to Franklin, or a similar gift made to Arthur Lee, an American envoy to France during this same
period. See Teachout, supra note 11, at 35.
17 See TEACHOUT, supra note 12, at 25-26.
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violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the
gift.18 Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting
foreign presents, offices, titles, or emoluments, unless Congress consents.19
Domestic Emoluments Clause. The Domestic Emoluments Clause’s purpose is to preserve the
President’s independence from Congress and state governments.20 To accomplish this end, the Clause
contains two key provisions. First, it provides that the President shall receive a compensation for his
services, which cannot be increased or decreased during his term,21 thus preventing the legislature from
using its control over the President’s salary to exert influence over him. To preserve presidential
independence further, the Clause provides that, apart from this fixed salary, the President shall not receive
“any other Emolument” from the United States or any state government.22
The Domestic Emoluments Clause, which drew upon similar provisions in state constitutions,23 received
little noted debate at the Constitutional Convention.24 Its meaning, however, was elucidated by Alexander
Hamilton in The Federalist No. 73. Hamilton wrote that the Domestic Emoluments Clause was designed
to isolate the President from potentially corrupting congressional influence: because the President’s salary
is fixed “once for all” each term, the legislature “can neither weaken his fortitude by operating on his
necessities, nor corrupt his integrity by appealing to his avarice.”25 Similarly, Hamilton explained that
because “[n]either the Union, nor any of its members, will be at liberty to give . . . any other emolument,”
the President will “have no pecuniary inducement to renounce or desert the independence intended for
him by the Constitution.”26 Other Framers echoed this sentiment during the ratification debates.27

18 See id.; Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op.
O.L.C. 13, 16 n.4 (1994).
19 U.S. CONST. art. I, § 9, cl. 8.
20 See generally THE FEDERALIST NO. 73 (Alexander Hamilton).
21 U.S. CONST. art. II, § 1, cl. 7.
22 Id.
23 See., e.g. MASS. CONST. of 1780, pt. II, ch. II, § 1, art. XIII (“As the public good requires that the governor should not be under
the undue influence . . . it is necessary that he should have an honorable stated salary, of a fixed and permanent value . . . .”); MD.
CONST. of 1776, art. XXXII (“That no person ought to hold, at the same time, more shall one office of profit, nor ought any
person in public trust, to receive any present from any foreign prince or state, or from the United States, or any of them, without
the approbation of this State.”); see generally Brianne J. Gorod et al., The Domestic Emoluments Clause: Its Text, Meaning, and
Application to Donald J. Trump, CONST. ACCOUNTABILITY CTR. (2017), at 6-7, https://www.theusconstitution.org/wp-
content/uploads/2017/07/20170726_White_Paper_Domestic_Emoluments_Clause.pdf (discussing state constitutional precedents
for the Domestic Emoluments Clause); Natelson, supra 11, at 24-27 (same).
24 See Robert J. Delahunty, Compensation, THE HERITAGE GUIDE TO THE CONSTITUTION (last accessed Sept. 13, 2019),
https://www.heritage.org/constitution/#!/articles/2/essays/84/compensation (“The Constitutional Convention hardly debated [the
Domestic Emoluments Clause].”). Early in the Constitutional Convention, Benjamin Franklin proposed that the President should
receive no compensation at all; this motion was politely postponed “with great respect, but rather for the author of it than from
any apparent conviction of its expediency or practicability.” 1 FARRAND’S RECORDS 81-85 (Madison’s notes). The Convention
unanimously agreed to the fixed salary provision for the President on July 20, 1787. 2 FARRAND’S RECORDS 69 (Madison’s
notes). On September 15, 1787, Franklin and John Rutledge moved to add the prohibition that the President should not receive
“any other emolument” from the federal or state governments, which was approved by a 7-4 vote without noted debate. 2
FARRAND’S RECORDS 626 (Madison’s notes); see also Natelson, supra note 11, at 36 (“Although the [emoluments] ban was added
to the [presidential] compensation feature without debate, the divided vote (7-4) suggests competing values were at stake.”).
25 THE FEDERALIST NO. 73 (Alexander Hamilton).
26 Id.
27 See 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 446 (Jonathan
Elliot ed., 1836) [hereinafter ELLIOT’S DEBATES] (statement of James Wilson) (“[The Domestic Emoluments Clause was
designed] to secure the President from any dependence upon the legislature as to his salary.”).
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Nineteenth and Twentieth Century Practice
The Foreign Emolument Clause provides a role for Congress in determining the propriety of foreign
emoluments, in that receipt of an emolument otherwise prohibited by the Clause is permitted with the
consent of Congress.28 Under this authority, Congress has in the past provided consent to the receipt of
particular presents, emoluments, and decorations through public or private bills,29 or by enacting general
rules governing the receipt of gifts by federal officers from foreign governments.30 For example, in 1966,
Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent
for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of
the United States under certain circumstances.31
Several Presidents in the 19th century—such as Andrew Jackson,32 Martin Van Buren,33 John Tyler,34 and
Benjamin Harrison35—notified Congress of foreign presents that they had received, and either placed the
gifts at its disposal or obtained consent to their receipt. Other 19th century Presidents treated presents that
they received as “gifts to the United States, rather than as personal gifts.”36 Thus, in one instance,
President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the
Department of State.37
In the 20th century, some Presidents have sought the advice of the Department of Justice’s Office of
Legal Counsel (OLC) on whether acceptance of particular honors or benefits would violate the
Emoluments Clauses. Three such OLC opinions addressed whether: (1) President Kennedy’s acceptance
of honorary Irish citizenship would violate the Foreign Emoluments Clause;38 (2) President Reagan’s
receipt of retirement benefits from the State of California would violate the Domestic Emoluments

28 U.S. CONST. art. I, § 9, cl. 8.
29 See generally S. REP. NO. 89-1160, at 1-2 (1966) (“In the past, the approval of Congress, as required by [the Foreign
Emoluments Clause], has taken the form of public or private bills, authorizing an individual or group of individuals to accept
decorations or gifts.”).
30 See, e.g., Act of Jan. 31, 1881, ch. 32 § 3, 21 Stat. 603, 603-04 (1881) (authorizing certain named persons to accept presents
from foreign governments, and requiring that “hereafter, any presents, decoration, or other thing, which shall be conferred or
presented by any foreign government to any officer of the United States . . . shall be tendered through the Department of State”).
31 See Pub. L. No. 89-673, 80 Stat. 592 (1966) (codified as amended at 5 U.S.C. § 7342).
32 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1902, at 466-67 (James Richardson, ed., 1907)
(January 19, 1830 letter from President Jackson to the Senate and House of Representatives, stating that the Constitution
prohibited his acceptance of a medal from Simon Bolivar and therefore placing the medal “at disposal of Congress”).
33 S.J. Res. 4, 26th Cong., 5 Stat. 409 (1840) (joint resolution of Congress authorizing President Van Buren to dispose of presents
given to him by the Imam of Muscat and deposit the proceeds in the Treasury);
34 S. JOURNAL, 28th Cong., 2d Session 254 (1844) (authorizing sale of two horses presented to the United States by the Imam of
Muscat); see also Teachout, supra note 11, at 42 (discussing the Van Buren and Tyler precedents); Seth Barrett Tillman, The
Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 NW. L. REV.
COLLOQUY 180, 190 (2013) (same).
35 Pub. Res. 54-39, 29 Stat. 759 (1896) (congressional resolution authorizing delivery of Brazilian and Spanish medals to
Benjamin Harrison).
36 See Proposal that the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278, 281 (1963).
37 Id.
38 Id. at 278 (concluding that acceptance of even “honorary” Irish citizenship would violate “the spirit, if not the letter” of the
Foreign Emoluments Clause).
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Clause;39 and (3) President Obama’s acceptance of the Nobel Peace Prize would violate the Foreign
Emoluments Clause.40
Persons Subject to the Emoluments Clauses
An 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 “[t]he President.”41 The
Clause prohibits the President from receiving emoluments from state or federal governments, aside from
his fixed federal salary. The Foreign Emoluments Clause applies to any person holding an “Office of
Profit or Trust under [the United States].”42 The OLC, which has developed a body of opinions on the
Emoluments Clauses,43 has opined that the President “surely” holds an “Office of Profit or Trust” under
the Constitution.44 OLC opinions are generally considered binding within the executive branch.45
There has been significant academic debate about whether OLC’s conclusion comports with the original
public meaning of the Foreign Emoluments Clause.46 Some legal scholars have argued that the Foreign
Emoluments Clause does not apply to elected officials such as the President, but only to certain appointed
federal officers.47 Other scholars support the OLC’s view that the President holds an office of profit under
the United States under the original meaning of the Foreign Emoluments Clause.48
In addition to textual and structural arguments, these scholars debate the significance of Founding-era
historical evidence. To support the view that the Foreign Emoluments Clause does not apply to the
President, academics have observed that, among other things: (1) a 1792 list produced by Alexander
Hamilton of “every person holding any civil office or employment under the United States” did not

39 President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 189-92 (1981)
(concluding that retirement benefits are not “emoluments” under the Domestic Emolument Clause because they “are neither gifts
nor compensation for services” and would not subject the President to improper influence).
40 Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel
Peace Prize, 33 Op. O.L.C. 1, 4, 7-9 (2009) (concluding that the Nobel Peace Prize is not given on behalf of a foreign
government, but a private organization).
41 U.S. CONST. art. II, § 1, cl. 7.
42 Id. art. I, § 9, cl. 8.
43 See generally Gary J. Edles, Service on Federal Advisory Committees: A Case Study of OLC’s Little-Known Emoluments
Clause Jurisprudence, 58 ADMIN. L. REV. 1 (2006); Sills, supra note 11, at 75-87 (reviewing OLC’s interpretation of the Foreign
Emoluments Clause).
44 See Nobel Peace Prize, 33 Op. O.L.C. at 4; see also Honorary Irish Citizenship, 1 Op. O.L.C. Supp. at 278 (assuming, without
definitively stating, that the Foreign Emoluments Clause applies to the President).
45 See Trevor W. Morrison, Constitutional Alarmism, 124 HARV. L. REV. 1688, 1711 (2011) (reviewing BRUCE ACKERMAN, THE
DECLINE AND FALL OF THE AMERICAN REPUBLIC (2011)) (“OLC’s legal opinions are treated as authoritative and binding within
the executive branch unless ‘overruled’ by the Attorney General or the President.”); Memorandum from David J. Barron, Acting
Assistant Att’y Gen., Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010),
http://www.justice.gov/olc/pdf/olc-legal-advice-opinions.pdf (“OLC's core function, pursuant to the Attorney General’s
delegation, is to provide controlling advice to Executive Branch officials on questions of law.”).
46 See, e.g., Natelson, supra note 11, at 12 (describing this issue as one of “sharp disagreement”); compare Tillman, supra note
34, at 185-95 (arguing that the Foreign Emoluments Clause does not apply to elected federal officials), with Teachout, supra note
11, at 39-48 (disputing Tillman’s view).
47 See, e.g., Tillman, supra note 34, at 185; Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 1:
The Constitution’s Taxonomy of Officers and Offices, WASH. POST: THE VOLOKH CONSPIRACY (Sept. 25, 2017),
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/25/the-emoluments-clauses-litigation-part-1-the-
constitutions-taxonomy-of-officers-and-offices/ (“[T]he text and history of the Constitution, and post-ratification practice during
the early republic, strongly support the counterintuitive view: The president does not hold an ‘Office … under the United
States.’”).
48 See, e.g., Teachout, supra note 11, at 48; Erik M. Jensen, The Foreign Emoluments Clause, 10 ELON L. REV. 73, 86-93 (2018).
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include elected officials such as the President and Vice President;49 (2) George Washington accepted gifts
from the Marquis de Lafayette and the French Ambassador while President without seeking congressional
approval;50 and (3) Thomas Jefferson similarly received and accepted diplomatic gifts from Indian tribes
and foreign nations, such as a bust of Czar Alexander I from the Russian government, without seeking
congressional approval.51 On the other side of the debate, scholars have observed that, among other
things: (1) during Virginia’s ratification debates, Edmund Randolph directly stated that the Foreign
Emoluments Clause applies to the President;52 (2) George Mason, another Framer, articulated a similar
view in those same debates;53 and (3) Alexander Hamilton, discussing the dangers of foreign influence on
republics in The Federalist No. 22, stated that this concern extends to a republic’s elected officials.54
Beyond examining contemporaneous historical evidence of the Foreign Emolument Clause’s original
public meaning, other evidence (such as text, precedent, and settled practice) is often used—at least by
some jurists—to inform constitutional meaning and interpretation.55 As a textual matter, both the
Constitution itself56 and contemporaneous sources57 refer to the Presidency as an “Office.”58 The
President receives compensation for his service in office (that is, “Profit”) and is tasked with many
important constitutional duties (that is, “Trust”).59 Furthermore, as discussed earlier, historical practice
from the 19th and 20th centuries could support the view that the President is subject to the Foreign
Emoluments Clause.60 Unlike Washington’s and Jefferson’s actions, several 19th century Presidents

49 See Tillman, supra note 34, at 186-88.
50 See id. at 188-90.
51 See Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 2: The Practices of the Early Presidents,
the First Congress and Alexander Hamilton, WASH. POST: THE VOLOKH CONSPIRACY (SEPT. 26, 2017),
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/26/the-emoluments-clauses-litigation-part-2-the-
practices-of-the-early-presidents-the-first-congress-and-alexander-hamilton/.
52 See DAVID ROBERTSON, DEBATES AND OTHER PROCEEDINGS OF THE CONVENTION OF VIRGINIA 345 (2d ed. 1805) (1788)
(statement of Edmund Randolph), https://archive.org/details/debatesotherproc00virg/page/345 (“There is another provision
against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. [citing the
Emoluments Clauses]. I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is
impossible to guard better against corruption.”).
53 3 ELLIOT’S DEBATES 484-85 (statement of George Mason) (“[The President] may, by consent of Congress, receive a stated
pension from European potentates. . . . It will, moreover, be difficult to know whether he receives emoluments from foreign
powers or not.”).
54 See THE FEDERALIST NO. 22 (Alexander Hamilton) (describing the danger of foreign influence on “persons elevated from the
mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power”) (emphasis added);
accord Sills, supra note 11, at 77 (interpreting Hamilton’s statement as supporting the applicability of the Foreign Emoluments
Clause to elected officials).
55 See generally CRS Report R45129, Modes of Constitutional Interpretation, by Brandon J. Murrill, at 1-4, 5-7, 10-15, 22-25.
56 U.S. CONST. art. II, § 1, cl. 1 (“[The President] shall hold his Office during the Term of four Years . . . .”); id. cl. 5 (“No Person
except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible
to the Office of President . . . .”); id. cl. 6 (“In Case of the Removal of the President from Office . . . .”).
57 See, e.g., THE FEDERALIST NO. 39 (James Madison) (“The President is to continue in office for the period of four years . . . .”);
id. NO. 69 (Alexander Hamilton) (“The President of the United States would be liable to be impeached, tried, and, upon
conviction of treason, bribery, or other high crimes or misdemeanors, removed from office . . . .”).
58 It should be noted that commentators who dispute that the Foreign Emoluments Clause applies to the President do not deny
that the Presidency is an “office,” but argue more narrowly that the President does not hold an office under the United States. See
supra note 47.
59 See Sills, supra note 11, at 81 (“The term ‘Office of Profit’ refers to an office in which a person in office receives a salary, fee,
or compensation. The term ‘Office of Trust,’ refers to offices involving “duties of which are particularly important” and requiring
‘the exercise of discretion, judgment, experience and skill.’” (quoting Application of the Emoluments Clause to a Member of the
President’s Council on Bioethics, 29 Op. O.L.C. 55, 61-62 (2005))).
60 See, e.g., Teachout, supra note 11, at 42; see generally NLRB v. Noel Canning, 573 U.S. 513, 524 (2014) (“[L]ong settled and
established practice is a consideration of great weight in a proper interpretation of constitutional provisions . . . .”) (quoting The
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notified Congress or sought congressional approval upon receipt of gifts by foreign governments.61
Finally, the common practice among recent Presidents of placing their financial interests in a blind trust or
its equivalent62 could reflect a concern that presidential financial holdings may implicate the Foreign
Emoluments Clause.63
The parties in recent litigation involving the Emoluments Clauses have not disputed that the Foreign
Emoluments Clause applies to the President.64 A single district court decision has reached the merits of
this issue. Weighing the evidence discussed above, that court held that “the text, history, and purpose of
the Foreign Emoluments Clause, as well as executive branch precedent interpreting it, overwhelmingly
support the conclusion” that the Foreign Emoluments Clause applies to the President.65 However, this
decision was recently overturned on appeal on other grounds.66
The Meaning of “Emolument”
A key disputed issue regarding the scope of the Emoluments Clauses is what constitutes an
“emolument.”67 This question has divided legal scholars and has only recently been addressed by any
federal courts.
Scholars, courts, and executive branch agencies have offered several potential definitions of
“emolument”:
1. Office-related definitions: Black’s Law Dictionary defines an “emolument” as an “advantage,
profit, or gain received as a result of one’s employment or one’s holding of office.”68 Some
scholars argue that this employment- or office-centric definition of the term is the definition

Pocket Veto Case, 279 U.S. 655, 689 (1929)).
61 See supra notes 32-37 and accompanying text.
62 Several recent Presidents have voluntarily placed their financial interests in a blind trust or limited their investments to assets
like diversified mutual funds. See Michael D. Shear & Eric Lipton, Ethics Office Praises Donald Trump for a Move He Hasn’t
Committed To, N.Y. TIMES, Nov. 30, 2016, https://www.nytimes.com/2016/11/30/us/politics/donald-trump-business-president-
elect.html (citing “four decades” of presidential practice); Timothy L. O’Brien, Conflicts of Interest? President Trump’s Would
Be Amazing, BLOOMBERG, June 2, 2016, https://www.bloomberg.com/opinion/articles/2016-06-02/donald-trump-might-make-
the-white-house-a-walmart (citing presidential “tradition” of using blind trusts between the Lyndon B. Johnson Administration
and President Trump).
63 See Norman L. Eisen, et al., The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, BROOKINGS
INSTITUTION 10 (Dec. 16, 2016), https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf
(“[Some recent Presidents’] recognized purpose for [putting financial holdings in a blind trust] has been to avoid an array of
conflicts, including with the Emoluments Clause.”).
64 Blumenthal v. Trump, 373 F. Supp. 3d 191, 196 n.3 (D.D.C. 2019) (“The parties do not dispute that the [Foreign Emoluments]
Clause applies to the President.”), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21,
2019); District of Columbia v. Trump, 315 F. Supp. 3d 875, 880 (D. Md. 2018) (“Although the President himself does not make
the argument, as a preliminary matter one of the Amici Curiae suggests that the President is not covered by the Foreign
Emoluments Clause.”), rev’d and remanded sub nom. In re Trump, 928 F.3d 360 (4th Cir. 2019).
65 District of Columbia, 315 F. Supp. 3d at 883-85.
66 See In re Trump, 928 F.3d at 374-79 (holding that the plaintiffs, the District of Columbia and the State of Maryland, lacked
standing under Article III to pursue their Emoluments Clauses claims against the President).
67 The Foreign Emoluments Clause may additionally be violated by accepting without the consent of Congress a “present, . . .
Office, or Title.” U.S. CONST. art. I, § 9, cl. 8. Scholarship generally has not focused as much on these aspects of the provision,
however. See, e.g., Sills, supra note 11, at 82-83 (“There is general agreement to the meaning of the terms, ‘present,’ ‘office,’ and
‘title.’ As such, these terms will not be further discussed.”). As noted above, Congress has also consented by statute to the
acceptance of certain foreign gifts (i.e., “present[s]”), including by the President, in limited circumstances. See 5 U.S.C. § 7342.
The two recent court decisions addressing the substance of the Foreign Emoluments Clause in relation to the President have
considered the relationship between “present” and “emolument,” as described in more detail below.
68 Emolument, BLACK’S LAW DICTIONARY (11th ed. 2019).
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encompassed by the Emoluments Clauses, meaning that the Clauses prohibit covered officials
from receiving compensation “for the personal performance of services” as an officer or
employee but do not bar “ordinary business transactions” between a covered official and
government.69
2. Any “profit, gain, advantage, or benefit”: Others argue that the term “emolument” is broader in
scope, applying to any profit, gain, advantage, or benefit.70 Under this broader conception, even
“ordinary, fair market value transactions” with foreign or domestic governments would be
prohibited.71
3. Functional or Purpose-based Definitions: Both the Department of Justice’s OLC and the
Comptroller General of the United States, on behalf of the Government Accountability Office
(GAO), in issuing opinions on whether the acceptance of particular payments, benefits, or
positions would implicate the Clauses, have at times appeared to adopt a fact-specific, functional
view of the Clauses. These opinions have sometimes focused on the purpose and potential effect
of the specific payments or benefits at issue as they relate to the Clauses’ goals of limiting
influence on the President and federal officers, assessing whether they are intended to or could
“influence . . . the recipient as an officer of the United States” under the totality of the
circumstances.72 At least one commentator has asserted that the OLC and GAO opinions support
a middle view that Presidents or other federal officers may receive “certain fixed benefits”
without those benefits being considered emoluments so long as they are not “subject to foreign or
domestic government manipulation or adjustment in connection with” the office.73
Debates over the scope of the Clauses have largely centered on their text, their history and purpose, and
historical practice.74 With respect to text, for instance, proponents of a broad definition emphasize the use

69 Grewal, supra note 4, at 642; see also Natelson, supra note 11, at 55 (“[T]he word ‘emolument(s)’ in the Constitution meant
compensation with financial value, received by reason of public office. . . . Proceeds from unrelated market transactions were
outside the scope of the term.”). Much of the scholarship has focused specifically on the meaning of “emolument” in the Foreign
Emoluments Clause. However, as discussed infra, similar arguments have been raised regarding both the Foreign and Domestic
Emoluments Clauses in the recent litigation involving the President.
70 See John Mikhail, The 2018 Seegers Lecture: Emoluments and President Trump, 53 VAL. U. L. REV. 631, 666 (2019) (“When
the Constitution was written, ‘emolument’ was a flexible term that generally meant ‘profit,’ ‘gain,’ ‘advantage,’ or ‘benefit.’ It
was commonly used in ordinary English to refer to advantages or benefits of different types. Not only government salaries, but
also payments on contracts, interest on loans, and profits from ordinary commercial transactions were all referred to as
‘emoluments.’”); Eisen, et al., supra note 63, at 11 (“[T]he [Foreign Emoluments] Clause unquestionably reaches any situation in
which a federal officeholder receives money, items of value, or services from a foreign state.”).
71 Eisen, et al., supra note 63, at 11.
72 President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 188 (1981) (citing
Assistant Comptroller General Weitzel to the Attorney General, 34 Comp. Gen. 331, 335 (1955)); see also Emoluments Clause
Questions Raised by NASA Scientist’s Proposed Consulting Arrangement with the University of New South Wales, 1986 WL
1239553 (O.L.C.) at *2 (1986) (considering whether specific factual scenario “would raise the kind of concern (viz., the potential
for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition”).
Other OLC and GAO opinions contain statements that could support either a broad or a narrower reading of the Clauses’ scope.
Compare Authority of Foreign Law Enforcement Agents to Carry Weapons in the United States, 12 Op. O.L.C. 67, 68 (1988)
(“The Emoluments Clause must be read broadly in order to fulfill [its underlying] purpose.”) and To the Secretary of the Air
Force, 49 Comp. Gen. 819, 821 (1970) (“It seems clear from the wording of the constitutional provision that the drafters intended
the prohibition to have the broadest possible scope and applicability.”), with Letter Opinion of the Comptroller General, B-
180472 (May 9, 1974) (“‘Emolument’ has been defined as profit, gain, or compensation received for services rendered.”) and
Authority of Foreign Law Enforcement Agents, supra, at 69 (“At a minimum, it is well established that compensation for services
performed for a foreign government constitutes an ‘emolument’ for purposes of the Emoluments Clause.”).
73 Jane Chong, Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?, LAWFARE (July 1,
2017), https://www.lawfareblog.com/reading-office-legal-counsel-emoluments-do-super-rich-presidents-get-pass.
74 See generally CRS Report R45129, Modes of Constitutional Interpretation, by Brandon J. Murrill, at 1-4, 5-7, 10-15, 22-25.
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of the word “any” in both Clauses and the phrase “any kind whatever” in the Foreign Emoluments
Clause.75 They also contrast those provisions with the limiting term “whereof” that links emoluments to
“civil Office” in the Ineligibility Clause (the provision that limits the ability of Members of Congress to
hold dual positions).76 But proponents of a narrower, office- or employment-limited definition note that
the word “any” in the Clauses may simply be read as extending coverage to multiple forms of
emoluments (beyond just monetary remuneration).77 They further assert that the use of “emolument” in
the Ineligibility Clause is clearly tied to an office-based definition and supports applying the same
definition to the other provisions.78 As for the Clauses’ history and purpose, both sides point to dictionary
definitions and other uses of the word (including by Framers) contemporaneous with the Constitution’s
drafting to support their preferred definition.79 Proponents of a broad definition also argue that statements
about the general anti-corruptive purpose of the Clauses support reading it expansively,80 while
proponents of an office- or employment-limited definition assert that the Clauses were the product of a
“balancing of values” that included attracting candidates for federal service who may have had conflicting
commercial interests.81 As for the corpus of OLC and GAO opinions interpreting the Clauses, proponents
of the broader and narrower definitions both cite opinions that they argue support their favored
definitions.82
In 2018 and 2019, two federal district courts substantively addressed the Emoluments Clauses’ scope for
the first time. Both courts concluded that the term “emolument” as used in the Clauses “is broadly defined
as any profit, gain, or advantage.”83 As to the Clauses’ text, the courts found significant the use of

75 Eisen, et al., supra note 63, at 11 (“[T]he clause, by referring to ‘any kind whatever,’ instructs that it be given a broad
construction.”).
76 See Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to Dismiss at 35, Blumenthal v. Trump, 373 F. Supp. 3d
191 (D.D.C. 2019) (No. 17-1154).
77 See Grewal, supra note 4, at 660-61 (maintaining that “a phrase like ‘of any kind whatever’ should not affect the threshold
definition of a word that precedes it”).
78 See id. (arguing that reading the three constitutional provisions referencing emoluments “together supports” the narrower
interpretation); Memorandum of Law in Support of Defendant’s Motion to Dismiss at 28-30, Citizens for Responsibility & Ethics
in Wash. v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y. 2017) (No. 17-458) (arguing that under Domestic Emoluments Clause,
allowance of presidential compensation “for his Services” and prohibition on “any other Emolument” supports narrower reading).
79 One study examined English language dictionaries published from 1604 to 1806 and English legal dictionaries published from
1523 to 1792 and concluded that over 92% of the dictionaries defined “emolument” exclusively using one or more terms favored
by proponents of the broad definition (i.e., “profit,” “advantage,” “gain,” or “benefit”), while only 8% of dictionaries contained a
definition tied to “office or employ.” Mikhail, supra note 70, at 655. By contrast, another scholar focused specifically on
references to emoluments in constitutional-convention and ratification-debate records and concluded that usage was mainly
limited in those contexts “to emoluments by reason of public office.” Natelson, supra note 11, at 29, 39.
80 Brief of Amici Curiae by Certain Legal Historians on Behalf of Plaintiffs at 14, Blumenthal v. Trump, 373 F. Supp. 3d 191
(D.D.C. 2019) (No. 17-1154) (arguing that a “narrow definition of ‘emolument’ limited to official services is inconsistent with
the [Foreign Emoluments Clause’s] basic purposes,” which include “seek[ing] to prevent activities that have the potential to
influence or corrupt the person who profits from them”).
81 E.g., Natelson, supra note 11, at 54 (“That the founders sought to encourage active members of the private sector to public
service provides further support for the Constitution’s emoluments provisions applying only to those emoluments received by
reason of office.”).
82 Compare Marty Lederman, How the DOJ Brief in CREW v. Trump Reveals that Donald Trump is Violating the Foreign
Emoluments Clause, TAKE CARE (June 12, 2017), https://takecareblog.com/blog/how-the-doj-brief-in-crew-v-trump-reveals-that-
donald-trump-is-violating-the-foreign-emoluments-clause (asserting that OLC opinion concluding partner at a private law firm
could not accept partnership profits derived from foreign-government clients he did not personally represent is “difficult to
reconcile” with office- or employment-limited definition), with Grewal, supra note 4, at 641 n.10, 655 (citing, among other
opinions, Emoluments Clause and World Bank, 25 Op. O.L.C. 113, 114 (2001), which itself cited other OLC opinions for the
proposition that the term “emolument” covers “compensation of any sort arising out of an employment relationship with a foreign
state”).
83 Blumenthal v. Trump, 373 F. Supp. 3d 191, 207 (D.D.C. 2019); District of Columbia v. Trump, 315 F. Supp. 3d 875, 904 (D.
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“expansive modifiers” like “any other” and “any kind whatever,”84 and rejected the proposition that the
term’s office-related use in the Ineligibility Clause should control its use in the other Clauses.85 With
respect to the Clauses’ history and purpose, the courts, while acknowledging that broader and narrower
definitions of “emolument” both existed at the time of ratification,86 found the weight of the historical
evidence and the Clauses’ “broad anti-corruption” purpose supported the more expansive definition.87
Finally, the courts viewed executive branch precedent and practice as “overwhelmingly consistent with
. . . [an] expansive view of the meaning of the term ‘emolument,’”88 observing that “OLC
pronouncements repeatedly cite the broad purpose of the Clauses and the expansive reach of the term
‘emolument.’”89
The recent court decisions construing the Emoluments Clauses are not final, however. In fact, as
discussed below, one of the decisions has since been reversed by the U.S. Court of Appeals for the Fourth
Circuit on a separate issue regarding the standing of the plaintiffs to sue,90 and the other decision has been
certified for an immediate appeal to the U.S. Court of Appeals for the District of Columbia Circuit.91
Thus, the import of these decisions is unclear.

Md. 2018) (“[T]he term ‘emolument’ in both Clauses extends to any profit, gain, or advantage, of more than de minimis value,
received by [the President], directly or indirectly, from foreign, the federal, or domestic governments.”). As discussed infra, a
third court considering a lawsuit involving the Clauses did not reach the interpretive question because it concluded the claims
should be dismissed on threshold grounds. Citizens for Responsibility & Ethics in Wash. v. Trump, 276 F. Supp. 3d 174, 186
(S.D.N.Y. 2017). However, now that an appellate court has reversed that judgment, CREW v. Trump, No. 18-474, slip op. at 26
(2d Cir. Sept. 13, 2019), the lower court may need to interpret the term “emolument.” See infra § Enforcement of the Clauses.
84 District of Columbia, 315 F. Supp. 3d at 887-88; see also Blumenthal, 373 F. Supp. 3d at 201.
85 Blumenthal, 373 F. Supp. 3d at 201; District of Columbia, 315 F. Supp. 3d at 888. The courts instead viewed the context to
support the broader view, as “when the Founders intended for an Emolument to refer to an official’s salary or payment associated
with their office, they said so explicitly.” Blumenthal, 373 F. Supp. 3d at 201; see also District of Columbia, 315 F. Supp. 3d at
888. Additionally, the courts rejected the proposition that adopting a broad definition of “emolument” would make the
prohibition on “present[s]” in the Foreign Emoluments Clause unnecessary, reasoning that including “present[s]” simply makes
clear that gratuitous benefits are also covered. Blumenthal, 373 F. Supp. 3d at 201; District of Columbia, 315 F. Supp. 3d at 889.
86 Blumenthal, 373 F. Supp. 3d at 201; District of Columbia, 315 F. Supp. 3d at 889.
87 Blumenthal, 373 F. Supp. 3d at 202-04; District of Columbia, 315 F. Supp. 3d at 889-900. In support of the narrower
definition, the defendant had pointed to the possible business dealings of George Washington, among other presidents, with
foreign and domestic governments and to a failed constitutional amendment that would have extended the Foreign Emoluments
Clause to all U.S. citizens. See, e.g., Blumenthal, 373 F. Supp. 3d at 202-04. The courts did not accord significant weight to this
historical evidence, however, essentially viewing it as speculative. Id. at 204; District of Columbia, 315 F. Supp. 3d at 894, 899.
The courts also rejected the contention that adopting the broad definition would lead to “absurd consequences” such as mutual
fund holdings being prohibited, e.g., District of Columbia, 315 F. Supp. 3d at 899, noting that the broad definition could still
account for “context” and de minimis exceptions. Id.; Blumenthal, 373 F. Supp. 3d at 204.
88 District of Columbia, 315 F. Supp. 3d at 901; see Blumenthal, 373 F. Supp. 3d at 206 (“[A]dopting the President’s narrow
definition of ‘Emolument’ would be entirely inconsistent with Executive Branch practice defining ‘Emolument’ and determining
whether the Clause applies.”).
89 District of Columbia, 315 F. Supp. 3d at 902; see also Blumenthal, 373 F. Supp. 3d at 206 (“OLC opinions have consistently
cited the broad purpose of the Clause and broad understanding of ‘Emolument’ advocated by plaintiffs to guard against even the
potential for improper foreign government influence.”). The court in District of Columbia also cited a 2017 opinion from the
House of Representatives’ Office of Congressional Ethics, which applied the Foreign Emoluments Clause to a Delegate’s receipt
of profits from a rental home, noting that the House Ethics Manual defines “emolument” broadly with “no exception or limitation
. . . for when the Member generates the profit from a fair market value commercial transaction.” OCE Report, Review No. 17-
1147, at 12 (June 2, 2017), https://ethics.house.gov/sites/ethics.house.gov/files/OCE%20Report%20and%20Findings_6.pdf.
90 In re Trump, 928 F.3d 360, 380 (4th Cir. 2019). Pending before the appellate court is the plaintiffs’ request that the court
reconsider its ruling or have the entire circuit court hear the case. Petition for Rehearing or Rehearing En Banc, In re Trump, 928
F.3d 360 (4th Cir. 2019) (No. 18-2486).
91 Blumenthal v. Trump, No. 17-1154, 2019 WL 3948478, at *3 (D.D.C. Aug. 21, 2019).
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Enforcement of the Clauses
Separate from issues regarding the scope of the Emoluments Clauses is how the provisions’ mandates are
enforced and, more specifically, whether the federal courts have a role in adjudicating violations of the
Clauses.92 A principal hurdle in recent litigation involving the President has been the doctrine of standing.
Standing is a threshold limitation concerning whether the person or entity suing in federal court has a
“right to make a legal claim or seek judicial enforcement of a duty or right.”93 The limitation includes a
constitutional component stemming from Article III of the U.S. Constitution, which limits the exercise of
federal judicial power to “Cases” or “Controversies.”94 The Supreme Court has interpreted this “case-or-
controversy limitation”95 to require, among other things, that a litigant have “a personal stake in the
outcome of the controversy” before the court.96 At a minimum, a plaintiff must establish that he or she has
suffered a personal injury (often called an “injury-in-fact”) that is actual or imminent and concrete and
particularized.97 In other words, the injury cannot be “abstract,”98 must affect the plaintiff in a “personal
and individual way,”99 and must actually exist or at least be “certainly impending” rather than merely
possible in the future.100 The plaintiff must also show “a sufficient causal connection between the injury
and the conduct complained of” (causation) and “a likelihood that the injury will be redressed by a
favorable decision” (redressability).101
Recent lawsuits over the Emoluments Clauses have been filed in three federal courts by (1) private parties
who argue they compete for business with properties related to the alleged violations of the Clauses, as
well as a public interest organization (the “SDNY litigation”); (2) the State of Maryland and the District
of Columbia (the “Maryland litigation”); and (3) over 200 Members of Congress (the “Congressional

92 There is no criminal prohibition on receiving or accepting emoluments from foreign or domestic governments that would apply
to the President, though accepting something of value in return for “being influenced in the performance of [an] official act”
could, theoretically, be prosecuted as bribery under federal law. See 18 U.S.C. § 201(b)(2) (prohibiting bribery of public officials
and defining “public official” in a way that would appear to include the President); Andy Grewal, Trump’s Obstruction of Justice
Defense and the Bribery Counterargument, NOTICE & COMMENT: YALE J. REG. (Dec. 14, 2017), http://yalejreg.com/nc/trumps-
obstruction-of-justice-defense-and-the-bribery-counterargument/ (treating 18 U.S.C. § 201 as applying to the president).
93 Standing, BLACK’S LAW DICTIONARY (11th ed. 2019).
94 U.S. CONST. art. III, § 2, cl. 1. Constitutional standing is a matter of a federal court’s subject-matter jurisdiction that it may
raise and decide before reaching a lawsuit’s merits, whether or not the parties contest standing. See United States v. Windsor, 570
U.S. 744, 756 (2013) (referring to “the jurisdictional requirements of Article III”); Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)
(“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have
disclaimed or have not presented.”).
95 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006).
96 Warth v. Seldin, 422 U.S. 490, 498 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
97 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
98 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548-49 (2016).
99 Lujan, 504 U.S. at 560 n.1.
100 Clapper v. Amnesty Int’l, 568 U.S. 398, 410 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
101 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Lujan, 504 U.S. at 560-61) (alteration and quotation
marks omitted). Beyond constitutional requirements, courts have also sometimes looked to certain “prudential” considerations in
assessing standing. These considerations have traditionally included (1) whether a plaintiff is asserting his or her own legal rights
and interests (rather than those of a third party); (2) whether the plaintiff’s complaint falls within the “zone of interests” covered
by the legal provision at issue; and (3) whether the plaintiff is merely asserting a “generalized grievance[]” that is more
appropriate for the representative branches of government to resolve. Valley Forge Christian Coll. v. Ams. United for Separation
of Church and State, 454 U.S. 464, 474-75 (1982) (citations omitted). However, in recent years, the Supreme Court has appeared
to move away from the concept of prudential standing, indicating that whether a case asserts a “generalized grievance” is part of
the constitutional analysis and the “zone of interests” test (at least in the statutory context) is actually a question of whether a
plaintiff “has a cause of action” because he or she “falls within the class of plaintiffs . . . authorized to sue.” Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 127 n.3, 128 (2014).
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litigation”). Each set of plaintiffs implicate distinct legal issues and precedent related to standing. Private-
party competitor plaintiffs rely on the notion of “competitor standing,”102 which holds that an economic
actor may have standing to challenge unlawful action that benefits a direct competitor in a way that
increases competition in the relevant market.103 State plaintiffs also rely on a competitor standing theory
and additionally assert harms to certain sovereign and “quasi-sovereign” interests of the state related to
tax revenue, diminution of their sovereign authority,104 and the economic well-being of state residents in
general.105 Finally, Members of Congress assert standing stemming from the alleged deprivation of their
constitutionally prescribed opportunity to vote on the permissibility of particular emoluments under the
Foreign Emoluments Clause, which implicates a unique set of standing principles that apply specifically
to legislative-entity plaintiffs.106 More broadly, regardless of the status or classification of the plaintiffs,
the fact that a lawsuit involving the Emoluments Clauses seeks a court ruling on the constitutionality of
the conduct of an official within another branch of the federal government means that courts must conduct
an “especially rigorous” standing inquiry given underlying separation-of-powers concerns.107
Attempts by these various plaintiffs to sue for alleged violations of the Emoluments Clauses have met
with mixed results. With respect to private-party competitor plaintiffs, the district court in the SDNY
litigation concluded that several such plaintiffs lacked standing because it was “wholly speculative” that
any loss of business or increase in competition could be traced to alleged violations of the Emoluments
Clauses rather than “government officials’ independent desire to patronize [the] businesses” allegedly
involved in those violations based on factors such as service and location.108 But the U.S. Court of
Appeals for the Second Circuit recently reversed the district court’s ruling regarding the competitor
plaintiffs,109 concluding that “a plaintiff-competitor who alleges a competitive injury caused by a

102 See Citizens for Responsibility & Ethics in Wash. (CREW) v. Trump, 276 F. Supp. 3d 174, 184 (S.D.N.Y. 2017) (“The
Hospitality Plaintiffs attempt to rely on the competitor standing doctrine to establish injury in fact.”).
103 E.g., Adams v. Watson, 10 F.3d 915, 922 (1st Cir. 1993) (surveying Supreme Court cases finding standing “premised on a
plaintiff’s status as a direct competitor whose position in the relevant marketplace would be affected adversely by the challenged
governmental action” (emphasis omitted)). The public interest organization involved in the SDNY litigation also claimed harm in
the form of diversion of its resources to combat alleged violations of the Clauses, CREW, 276 F. Supp. 3d at 189, but it has since
dropped out of the lawsuit. CREW v. Trump, No. 18-474, slip op. at 3 n.1 (2d Cir. Sept. 13, 2019).
104 See District of Columbia v. Trump, 291 F. Supp. 3d 725, 738-42 (D. Md. 2018).
105 See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982) (recognizing that a state may sue in
certain circumstances to protect its interests in “the health and well-being—both physical and economic—of its residents in
general”).
106 For a fulsome discussion of those principles, see CRS Report R45636, Congressional Participation in Litigation: Article III
and Legislative Standing, by Wilson C. Freeman and Kevin M. Lewis.
107 Raines v. Byrd, 521 U.S. 811, 819-20 (1997) (“[O]ur standing inquiry has been especially rigorous when reaching the merits
of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was
unconstitutional.”).
108 CREW, 276 F. Supp. 3d at 186. The district court in that case also concluded the asserted injuries were unlikely to be
redressed by the requested relief—an injunction preventing further Emoluments Clause violations, among other things—because
it was speculative whether such relief would “lessen the competition inherent in any patron’s choice of hotel or restaurant.” Id.
Moreover, the court applied another doctrine governing judicial review, “ripeness,” which is “designed to prevent courts from
prematurely adjudicating cases,” to conclude that the plaintiffs’ Foreign Emoluments Clause claims were not ripe for review. Id.
at 194 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1976)). In the court’s view, the “conflict between two co-equal
branches of government” had “yet to mature” because Congress had not “asserted its authority and taken some sort of action with
respect to” the “alleged constitutional violations of its consent power.” Id. at 194-95.
109 The lower court had also determined that a public interest organization involved in the suit did not suffer a cognizable injury
for standing purposes by having to expend its resources to combat the alleged violations of the Emoluments Clauses, reasoning
that the organization’s decisions about how to expend finite resources were “entirely self-inflicted and not borne out of [the
organization’s] need to remedy any particular adverse consequence or harmful effect of” the challenged conduct. Id. at 191 n.6.
The public interest organization opted not to appeal the district court’s judgment that it lacked standing. CREW v. Trump, No.
18-474, slip op. at 3 n.1 (2d Cir. Sept. 13, 2019).
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defendant’s unlawful conduct that skewed the market in another competitor’s favor [has standing]
notwithstanding other possible, or even likely, causes for the benefit going to the plaintiff’s
competition.”110
As for state plaintiffs, a different district court concluded in the Maryland litigation that the State of
Maryland and the District of Columbia (D.C.) had standing to sue as competitors based on their interests,
along with the interests of their citizens, in hotels and event spaces that competed with a hotel in D.C.
related to the alleged unconstitutional conduct.111 The court reasoned that, based on specific factual
allegations regarding diversion of business to that hotel, the plaintiffs were “placed at a competitive
disadvantage” because of violations of the Clauses that “unfairly skew[ed] the hospitality market” against
them.112 The U.S. Court of Appeals for the Fourth Circuit subsequently reversed this decision, however,
concluding that the theory of standing hinged on the proposition that government customers were
patronizing the relevant hotel “because the [h]otel distributes profits or dividends” in violation of the
Clauses “rather than due to any of the [h]otel’s other characteristics[,]” and such a proposition required
“speculation into the subjective motives of independent actors . . . not before the court, undermining a
finding of causation.”113
Finally, with respect to Members of Congress, the district court in the Congressional litigation determined
in 2018 that over 200 Members had standing to sue under the Foreign Emoluments Clause based on the
deprivation of their “opportunity to exercise their constitutional right to vote on whether to consent prior
to . . . acceptance of prohibited emoluments.”114 Faced with Supreme Court precedent indicating that
individual legislators generally lack standing to sue for institutional injuries that amount to “abstract
dilution of institutional legislative power,” but may have standing when their votes on specific items
“have been completely nullified,”115 the district court concluded that the Members alleging violations of

110 Id. at 26. The appellate court also rejected the lower court’s conclusions that the asserted injuries were unlikely to be redressed
by the requested relief and that the ripeness doctrine posed a barrier to maintaining suit, reasoning that (1) standing is not
defeated by the “mere possibility that customers might continue to favor” one product or service over another after a court
enjoins violations of law contributing to that favoritism, and (2) deferring adjudication would not necessarily lead to further
ripening but would likely simply allow the challenged conduct to continue “because of the absence of an adjudicator to tell the
President whether his conduct is, or is not, permitted by the Constitution he serves.” Id. at 42, 63-64. One judge dissented,
arguing that the majority applied an unbounded theory of competitor standing based on speculative assertions of harm, causation,
and redressability. Id. at 15 (Walker, J., dissenting).
111 District of Columbia v. Trump, 291 F. Supp. 3d 725, 757 (D. Md. 2018). Regarding the interests of citizens, the court
concluded that Maryland and the District of Columbia could sue as parens patriae, based on their own “quasi-sovereign”
interests in the economic well-being of the citizens. Id. at 748; see Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458
U.S. 592, 600-02 (1982) (describing quasi-sovereign interests and contrasting them with sovereign and “other kinds of interests
that a State may pursue”). In so doing, the court distinguished cases casting “doubt on a State’s standing to assert a quasi-
sovereign interest . . . against the Federal Government,” Massachusetts v. EPA, 549 U.S. 497, 539 (2007) (Roberts, C.J.,
dissenting), as involving challenges to “the operation of federal statutes” rather than asserting a state’s “rights under federal law
(which it has standing to do).” District of Columbia, 291 F. Supp. 3d at 747 (quoting Massachusetts, 549 U.S. at 520 n.17).
112 Id. at 745. The court also determined that Maryland and the District of Columbia had standing stemming from injuries to a
distinct “quasi-sovereign” interest, see Snapp & Son, 458 U.S. at 600-02, in equal status and participation in the federal system,
based on allegations that they felt “effectively ‘coerced’” to stay at or grant special concessions to the hotel allegedly involved in
violations of the Clauses to “help them obtain federal favors.” District of Columbia, 291 F. Supp. 3d at 742.
113 In re Trump, 928 F.3d 360, 376, 377 (4th Cir. 2019). The appellate court further determined that the alleged injuries were not
redressable because there was a likelihood that an injunction “would not cause government officials to cease patronizing” the
hotel allegedly involved in violations of the Clauses, id. at 377, and the court dismissed alleged injuries to the plaintiffs’ other
quasi-sovereign interests as “amount[ing] to little more than a general interest in having the law followed.” Id. at 378.
114 Blumenthal v. Trump, 335 F. Supp. 3d 45, 63 (D.D.C. 2018).
115 Raines v. Byrd, 521 U.S. 811, 823, 826 (1997); see also Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953-54
(2019) (observing that “individual members lack standing to assert the institutional interests of a legislature” and concluding that
one house of a bicameral state legislature lacked standing where the case “[did] not concern the results of a legislative chamber’s
poll or the validity of any counted or uncounted vote”).
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the Foreign Emoluments Clause fell into the latter category.116 Central to the district court’s decision in
the Congressional litigation was its view that the Member-plaintiffs lacked an adequate legislative remedy
for the alleged violations without court intervention.117 According to the court, although Congress as a
whole could pass “legislation on the emoluments issue” to consent to or reject perceived emoluments, the
political process would do nothing to address the deprivation of the Members’ opportunity to give
advance approval or disapproval of particular emoluments in the first instance.118
As with the court rulings on the definition of the term “emolument,” the judicial decisions on standing to
enforce the Emoluments Clauses all present avenues for further review: (1) in the SDNY litigation, the
case could be reheard by the panel of, or the entire, U.S. Court of Appeals for the Second Circuit if
requested;119 (2) in the Maryland litigation, the plaintiffs have asked the U.S. Court of Appeals for the
Fourth Circuit to reconsider its ruling;120 and (3) in the Congressional litigation, the district court recently
stayed the case and granted an immediate appeal in response to an order from the U.S. Court of Appeals
for the D.C. Circuit indicating such an appeal would be appropriate.121 It is thus possible that the
outcomes in some or all of the opinions just described could change. Given that the U.S. Courts of
Appeals for the Second and Fourth Circuits have now effectively split on the viability of competitor
standing theories as they relate to alleged violations of the Emoluments Clauses, Supreme Court review is
also possible.122
Beyond standing, other doctrines may present potential roadblocks to judicial enforcement of the Clauses.
For instance, though its continued vitality is questionable,123 the Supreme Court has traditionally applied
as a prudential aspect of the standing inquiry a “zone of interests” test, which “denies a right of review if
the plaintiff’s interests are marginally related to or inconsistent with the purposes implicit in the
constitutional provision” at issue.124 Applying this test in the context of the Emoluments Clauses, the
district court in the SDNY litigation involving private competitors concluded that such competitors fell
outside the zone of interests of the Clauses, as the Emoluments Clauses stemmed from “concern with
protecting the . . . government from corruption and undue influence” and were not “intended . . . to
protect anyone from competition.”125 Another potential barrier is the “political question doctrine,” a
separation-of-powers-based limitation on the ability of courts to hear disputes where there is, among other
things, a “textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it.”126 In the
SDNY litigation, the district court concluded that the fact that the Foreign Emoluments Clause provides

116 Blumenthal, 335 F. Supp. 3d at 62-64.
117 Id. at 66.
118 Id. at 66-68.
119 CREW v. Trump, No. 18-474 (2d Cir. Feb. 16, 2018); FED. R. APP. P. 35, 40 (permitting petitions for rehearing en banc and
setting time limits for filing petitions for panel rehearing).
120 Petition for Rehearing or Rehearing En Banc, In re Trump, 928 F.3d 360 (4th Cir. 2019) (No. 18-2486).
121 See Blumenthal v. Trump, No. , 2019 WL 3948478, at *3 (D.D.C. Aug. 21, 2019).
122 See SUP. CT. R. 10 (indicating that, in deciding whether to grant certiorari, the Supreme Court may consider the fact that one
federal “court of appeals has entered a decision in conflict with the decision of another [federal] court of appeals on the same
important matter”).
123 See supra note 101.
124 Wyoming v. Oklahoma, 502 U.S. 437, 469 (1992) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 394, 399 (1987))
(alterations omitted).
125 CREW v. Trump, 276 F. Supp. 3d 174, 187 (S.D.N.Y. 2017).
126 Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012).
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authority to Congress to “consent to violations” meant that Congress, rather than the judiciary, would be
“the appropriate body to determine whether” the alleged conduct “infringes on that power.”127
Reversing both rulings, however, the U.S. Court of Appeals for the Second Circuit recently concluded that
(1) “a plaintiff who sues to enforce a law that limits the activity of a competitor satisfies the zone of
interests test even though the limiting law was not motivated by an intention to protect entities such as
plaintiffs from competition,”128 and (2) the judiciary’s responsibility to adjudicate alleged violations of the
Constitution was not lessened by the “mere possibility that Congress might grant consent” to particular
emoluments.129 The district courts in the Maryland litigation and the Congressional litigation likewise
agreed that the zone of interests test and political question doctrine did not bar those suits.130
Nevertheless, like the other issues raised in recent litigation involving the Emoluments Clauses, further
review of the application of these doctrines is possible.131 Ultimate resolution of the issues is thus
uncertain and will likely depend on the nature of the plaintiff involved.

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127 CREW, 276 F. Supp. 3d at 193.
128 CREW v. Trump, No. 18-474, slip op. at 47 (2d Cir. Sept. 13, 2019).
129 Id. at 59.
130 Among other things, the district court in the Congressional litigation reasoned that Congress’s interests are explicitly
contemplated in the text of the Foreign Emoluments Clauses. Blumenthal, 373 F. Supp. 3d at 209-10. The district court in the
Maryland litigation viewed the Clauses as “protect[ing] all Americans” and determined that without congressional approval of
emoluments, sufficient standards existed for the judiciary to review the legality of the actions at issue. District of Columbia, 291
F. Supp. 3d at 755, 757.
131 The President has also raised other arguments in the litigation involving the Emoluments Clauses, including that the requested
relief of an injunction would impermissibly interfere with his constitutional duties and is unavailable in the Emoluments Clause
context. E.g., Blumenthal, 373 F. Supp. 3d at 208-12. Thus far, none of the courts considering the Clauses have accepted these
arguments, e.g., id., though one appellate court has indicated that the arguments are “substantial” and another has noted that
whether the Foreign Emoluments Clause supports a cause of action against the President is “unsettled.” In re Trump, 928 F.3d
360, 374 (4th Cir. 2019); In re Trump, No. 19-5196, 2019 WL 3285234, at *1 (D.C. Cir. July 19, 2019).
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