ArtI.S9.C8.2 Historical Background on the Foreign Emoluments Clause

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.

The Foreign Emoluments Clause’s basic purpose 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.” 1 The Convention approved the Clause unanimously without noted debate.2 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.” 3

The Foreign Emoluments Clause reflected the Framers’ experience with the then-customary European practice of giving gifts to foreign diplomats.4 Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651,5 the Articles of Confederation provided: “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.” 6 The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.7

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.8 A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause,9 involved the King of France’s gift of an opulent snuff box to Benjamin Franklin.10 Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift.11 Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.12

The Foreign Emoluments Clause thus provides a role for Congress in determining the propriety of foreign emoluments. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills,13 or by enacting general rules governing the receipt of gifts by federal officers from foreign governments.14 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 in some cases.15

Several Presidents in the 19th century—such as Andrew Jackson,16 Martin Van Buren,17 John Tyler,18 and Benjamin Harrison19 —notified Congress of foreign presents they received, and either placed the gifts at Congress’s disposal or obtained consent for their acceptance. Other 19th century Presidents treated presents they received as “gifts to the United States, rather than as personal gifts.” 20 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.21 In the 20th century, some Presidents sought the advice of the Department of Justice’s Office of Legal Counsel on whether acceptance of particular honors or benefits would violate the Emoluments Clauses.22

Footnotes
1
2 The Records of the Federal Convention of 1787, at 389 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Madison’s notes). back
2
Id. back
3
See 3 Farrand’s Records, supra note 1, at 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.” ). back
4
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). back
5
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)). back
6
Articles of Confederation of 1781, art. VI, ¶ 1. back
7
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. Articles of Confederation of 1781, art. VI, ¶ 1; see also Natelson, supra note 4, 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 1, 5 (2012) (same). back
8
See generally Teachout, supra note 5, at 20-26; Natelson, supra note 4, at 43-45. back
9
As Edmund Randolph recounted to the Virginia ratifying convention:

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 . . . .

3 Farrand’s Records, supra note 1, at 327. 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 5, at 35.

back
10
See Teachout, supra note 5, at 25-26. back
11
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). back
12
U.S. Const. art. I, § 9, cl. 8. back
13
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.” ). back
14
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” ). back
15
See Pub. L. No. 89-673, 80 Stat. 952 (1966) (codified as amended at 5 U.S.C. § 7342). back
16
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” ). back
17
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). back
18
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 5, 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). back
19
Pub. Res. 54-39, 29 Stat. 759 (1896) (congressional resolution authorizing delivery of Brazilian and Spanish medals to former President Benjamin Harrison). back
20
See Proposal that the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278, 281 (1963). back
21
Id. back
22
See 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 acceptance of the Nobel Peace Prize does not violate the Foreign Emoluments Clause because it is awarded by a private organization, not a foreign government); 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 Emoluments Clause because they “are neither gifts nor compensation for services” and would not subject the President to improper influence); Honorary Irish Citizenship, 1 Op. O.L.C. Supp. at 278 (concluding that President’s acceptance of even “honorary” Irish citizenship would violate “the spirit, if not the letter” of the Foreign Emoluments Clause). back