ArtI.S9.C8.3 Foreign Emoluments Clause Generally

Article I, Section 9, Clause 8:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

For most of its history, courts have rarely substantively analyzed or interpreted the Foreign Emoluments Clause.1 During the administration of President Donald Trump, however, a number of private parties, state attorneys general, and Members of Congress sued the President based on alleged violations of both the Foreign Emoluments Clause and the Domestic Emoluments Clause2 (collectively, the Emoluments Clauses). Three major federal lawsuits concerning the Emoluments Clauses were filed against President Trump.3 Over nearly four years, these cases progressed through the lower federal courts, resulting in the first significant judicial decisions on the Emoluments Clauses.

In late 2020, the Supreme Court denied review in one of these cases,4 and—after the end of President Trump’s term in January 2021—instructed two federal appellate courts to vacate their judgments and dismiss the other two cases as moot.5

20-330, 2021
WL 231541 (U.S. Jan. 25, 2021); In re Trump, 958 F.3d 274 (4th Cir. 2020) (en banc), cert. granted, judgment vacated sub nom., Trump v. District of Columbia, No.
20-331, 2021
WL 231542 (U.S. Jan. 25, 2021)
. As a result, most of the lower court decisions on the Emoluments Clauses have been vacated.6 In the absence of definitive precedent from the Supreme Court, this section reviews these lower court holdings regarding the meaning and scope of the Emoluments Clauses, although they generally retain at most persuasive, and not precedential, value.7

In the three cases, plaintiffs alleged that President Trump’s retention of certain business and financial interests during his Presidency violated the Emoluments Clauses. For example, because President Trump retained an ownership interest in the Trump International Hotel, plaintiffs alleged he received constitutionally forbidden “emoluments” when foreign or state governments paid for their officials to stay at the Hotel.8

20-330, 2021
WL 231541 (U.S. Jan. 25, 2021). In a series of rulings, the lower courts addressed three main issues: (1) who has standing to assert Emoluments Clause violations; (2) whether the President and other elected officials are subject to the Foreign Emoluments Clause; and (3) the meaning and scope of the term “emolument.” 9

On the standing-to-sue issue, the U.S. Court of Appeals for the District of Columbia Circuit held that individual Members of Congress lacked standing to sue based on alleged injuries to the legislature as a whole (namely, the deprivation of an opportunity to vote on whether to consent to the acceptance of foreign emoluments).10 As to the standing of private individuals, the U.S. Court of Appeals for the Second Circuit held that hospitality-industry plaintiffs had standing based on a theory of competitive harm resulting from the allegedly unlawful acceptance of emoluments.11

20-330, 2021
WL 231541 (U.S. Jan. 25, 2021). A district court in Maryland adopted a similar view of competitor standing with respect to state-government plaintiffs. See District of Columbia v. Trump, 291 F. Supp. 3d 725, 740–49 (D. Md. 2018), vacated, 838 F. App’x 789, 790 (4th Cir. 2021). However, a number of judges on the Second Circuit dissented from this holding12 and the Supreme Court subsequently vacated the decision as moot.13

On the second issue, commentators have debated whether federal elected officials hold an “Office of Profit or Trust” under the United States are thus subject to the Foreign Emoluments Clause.14 The Department of Justice’s Office of Legal Counsel (OLC), which has developed a body of opinions on the Emoluments Clauses, has opined that the President “surely” holds an office of profit and trust under the Constitution.15 In litigation, President Trump conceded that he was subject to the Foreign Emoluments Clause,16 and the only lower court to directly reach the issue agreed with the OLC’s view.17 However, that holding was subsequently vacated.18

The final litigated issue was the meaning and scope of the term “emolument” as used in the Emoluments Clauses—particularly, whether it includes private, arm’s-length market transactions. In the litigation, President Trump argued that “emoluments” included only benefits received by an officeholder in return for official action or through his office or employment.19 Plaintiffs urged that “emoluments” be defined more broadly to apply to any “profit, gain, or advantage” received by the President from a foreign or domestic government.20 The two district courts that reached the issue adopted the plaintiffs’ broader definition of “emolument,” 21 although the appellate courts subsequently vacated those decisions.22

Footnotes
1
See Michael A. Foster & Kevin J. Hickey, Cong. Rsch. Serv., R45992, The Emoluments Clauses and the Presidency: Background and Recent Developments 1 (2019), >https://crsreports.congress.gov/product/pdf/R/R45992. Like the Title of Nobility Clause, the Foreign Emoluments Clause is occasionally cited by the Supreme Court in passing to make a rhetorical point. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 424 n.51 (2010) (Stevens, J., concurring in part and dissenting in part) (citing Foreign Emoluments Clause to argue that the “notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers” ); Roe v. Wade, 410 U.S. 113, 157 (1973) (noting that the Emoluments Clause, along with a number of other constitutional provisions, uses the term “Person” without “pre-natal application” ). back
2
See ArtII.S1.C7.1 Emoluments Clause and Presidential Compensation. back
3
See Complaint, Citizens for Resp. & Ethics in Washington (CREW) v. Trump, No. 1:17-cv-00458-RA (S.D.N.Y. Jan. 23, 2017); Complaint, Blumenthal v. Trump, No. 1:17-cv-01154-EGS (D.D.C. June 14, 2017); Complaint, District of Columbia v. Trump, No. 8:17-cv-01596-PJM (D. Md. June 12, 2017). back
4
Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020), cert. denied, 141 S. Ct. 553 (U.S. 2020). back
5
See CREW v. Trump, 953 F.3d 178 (2d Cir. 2019), cert. granted, judgment vacated, No.
20-330, 2021
WL 231541 (U.S. Jan. 25, 2021); In re Trump, 958 F.3d 274 (4th Cir. 2020) (en banc), cert. granted, judgment vacated sub nom., Trump v. District of Columbia, No.
20-331, 2021
WL 231542 (U.S. Jan. 25, 2021)
. back
6
An exception is the District of Columbia Circuit’s opinion on legislative standing, which remains good law. See Blumenthal, 949 F.3d 14. back
7
See Persuasive Authority, Black’s Law Dictionary (11th ed. 2019) ( “Authority that carries some weight but is not binding on a court . . . .” ). back
8
See, e.g., CREW v. Trump, 276 F. Supp. 3d 174, 182 (S.D.N.Y. 2017) (reviewing plaintiffs’ allegations), vacated and remanded, 953 F.3d 178 (2d Cir. 2019), judgment vacated, No.
20-330, 2021
WL 231541 (U.S. Jan. 25, 2021). back
9
For a fuller examination of these decisions, see Foster & Hickey, supra note 1, at 5–18. back
10
Blumenthal, 949 F.3d at 19–20. back
11
CREW v. Trump, 953 F.3d 178, 189–200 (2d Cir. 2019), cert. granted, judgment vacated, No.
20-330, 2021
WL 231541 (U.S. Jan. 25, 2021). A district court in Maryland adopted a similar view of competitor standing with respect to state-government plaintiffs. See District of Columbia v. Trump, 291 F. Supp. 3d 725, 740–49 (D. Md. 2018), vacated, 838 F. App’x 789, 790 (4th Cir. 2021). back
12
See CREW v. Trump, 971 F.3d 102, 102 (2d Cir. 2020) (noted dissents from five judges from the denial of rehearing en banc). back
13
CREW v. Trump, No.
20-330, 2021
WL 231541 (U.S. Jan. 25, 2021)
. back
14
Compare Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. L. Rev. Colloquy 180, 185–95 (arguing that the Foreign Emoluments Clause does not apply to elected federal officials), with Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. L. Rev. Colloquy 30, 39–48 (2012) (disputing this view). back
15
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 (2009); see also Proposal that the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278, 278 (1963) (assuming that the Foreign Emoluments Clause applies to the President). back
16
See, e.g., 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.” ), rev’d on other grounds, Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020). back
17
See District of Columbia v. Trump, 315 F. Supp. 3d 875, 882–86 (D. Md. 2018), vacated, 838 F. App’x 789, 790 (4th Cir. 2021). back
18
District of Columbia v. Trump. 838 F. App’x 789, 790 (4th Cir. 2021). back
19
See, e.g., Blumenthal, 373 F. Supp. 3d at 196–98. back
20
See, e.g., id. at 197–98. back
21
See id. at 199–208; D.C. v. Trump, 315 F. Supp. 3d at 886–904. back
22
District of Columbia v. Trump, 838 F. App’x 789, 790 (4th Cir. 2021); Blumenthal v. Trump, 949 F.3d 14, 21 (D.C. Cir. 2020), cert. denied, 141 S. Ct. 553 (2020). back