Some misgivings about the Foreign Emoluments Clause arguments

|The Volokh Conspiracy |


I keep getting asked questions about whether Donald Trump's foreign business dealings will run afoul of the Foreign Emoluments Clause, which says:



1. I'm still not convinced that the president holds an "Office … under [the United States.]" As I explained in an essay this summer, Seth Barrett Tillman's scholarship on this question (once I really understood it) has influenced me. Tillman argues that an "Office … under [the United States]" is one created, regularized or defeasible by federal statute and therefore does not include constitutionally elected positions such as the presidency. I think Tillman's work has shifted the burden of proof on this question to those who think otherwise.

There have been some attempts to show otherwise. The much-cited Eisen/Painter/Tribe report contains a few things on this issue, but doesn't do the question justice. A more direct engagement comes from Mark Joseph Stern at Slate, and here is Michael Stern at Point of Order as well (no relation that I know of).

I do think that there are some good arguments that the president is covered, but on balance one major point on Tillman's side remains unanswered: Tillman has a nearly comprehensive theory of how all of the different office-related phrases in the Constitution make sense together—as a matter of text, structure and history. For instance, the president and vice president have never received commissions for their offices, even though Article II requires the president to "Commission all the Officers of the United States." If you do not have an explanation for that, I am not sure how confident you should be in your view of the Foreign Emoluments Clause.

So I do not think Tillman's scholarship on this point is fully answered by arguments that focus on the supposed purpose or claims about the Foreign Emoluments Clause alone. There was a time when it was conservatives who were criticized for an overly "clause-bound" method of interpretation. But much of the writing on Trump and the Foreign Emoluments Clause seems to make the same mistake.

To be sure, it is possible that the Constitution's different phraseology is just an accident or doesn't make sense. But the fact that Tillman's work does make sense of it is a strong point in his favor. And it is a reason I would really love to read a competing account of the meaning of all of these phrases from somebody who disagrees.



3. That said, there are other emoluments clauses. Until last year, the most-studied emoluments clause was the one that forbids members of Congress from being appointed to an office "the Emoluments whereof shall have been increased during" their terms. (The most famous such study is Michael Stokes Paulsen, "Is Lloyd Bentsen Unconstitutional?", 46 Stanford L. Rev. 907 (1994), though I am just finishing my own effort.)



This Clause unquestionably applies to the president, and might raise problems for various business transactions and tax benefits that the Trump empire receives. But then we have to figure out what an "emolument" is, and this turns out to be very complicated. (Here is Mike Rappaport on a range of historical definitions, here is a discussion of Ronald Reagan's California pension, here is a discussion of President Obama's treasury bonds—and we're just getting started.)



The more urgent and more serious question is how the American people do and should feel about the president's business interests. The emoluments clauses are not the most relevant thing to that inquiry, and maybe not the best way to frame it.