Emoluments
What are the Emolument Clauses?
Why were they included in the Constitution?
At the Constitution Convention, the Framers constructed a new government beginning with the legislature, the branch on which they conferred the most power and which was to be controlled by and reflect the will of the people. Having dispensed with establishing a bicameral legislature, (ie. Congress), the delegates discussed the possibility of creating a chief executive. Madison’s Virginia Plan,1 which had served as the de facto agenda for much of the Convention’s first two months, did not include a chief executive; William Patterson’s New Jersey Plan, however, did.2 There was widespread fear and suspicion among the delegates towards any office in the new government that could appear to be, or could ever become like a king. The government under the Articles had no such office, and it suffered from a lack of leadership and centralized responsibility. Hamilton, the most outspoken advocate for a chief executive, argued that the position was necessary if the new government was to survive and thrive. The delegates eventually came around to Hamilton’s position, but not before they had placed sufficient checks on the office to prevent the president from encroaching on the powers of the other two branches.3 Their other great fear was that the person occupying the presidency might be corrupted, ie, engage in behaviors that favored the president’s personal interests or those of a foreign power. It was to prevent corruption that the Framers added two emolument clauses.4
The domestic emolument clause (Article II, section 1, clause 7) 5 opens with a guarantee that the president will receive compensation, and that said compensation will not be increased or decreased during the president’s time in office.6 The Framers anticipated that a future Congress might attempt to extract concessions from a president by lowering the salary, or entice a concession by raising a president’s salary, essentially bribing the president. The article’s last section forbids the president from accepting any other benefits while in office, either from the federal government or any state government. The Framers’ rationale here is akin to their reasoning in the opening section, replacing Congress with other parts of the national government and the states. While the Supreme Court has never directly interpreted the domestic emolument clause, it is assumed by constitutional scholars that presidents cannot use the office to enrich themselves personally while serving as president. In the modern era, President Clinton was accused of enriching himself and his party by “selling” a night in the Lincoln bedroom for donations to the Democratic Party and his 1996 reelection campaign. President Trump was accused of personally benefiting himself and his business in 2020 when those seeking to win the President’s favor stayed at the Trump-owned Washington hotel. Several cases were filed in federal courts, but the Supreme Court dismissed them as moot in 2021. In his second term, President Trump’s crypto and meme business ventures again raised questions about violations of the domestic emolument clause, as over 40% of Trump’s net worth derives from crypto enterprises.
The foreign emolument clause (Article I, section 9, clause 8)7 immediately reveals the Framers’ deep mistrust and disdain for monarchs and political systems based on nobility, as it absolutely forbids the federal government from conferring noble titles. It then bans all persons working in the federal government from accepting any type of gift from any monarch or other titled person or a foreign government, without the consent of Congress. The Framers were well-aware of the practices of European monarchs: it was common for a king to bestow gifts on foreign ambassadors with the expectation of establishing and maintaining mutually beneficial relations with the ambassador’s government.8 Delegate Charles Pinckney (SC) argued for the clause, saying “the necessity of preserving foreign Ministers and other officers of the United States independent of external influence” was paramount.
In 1966, Congress passed the Foreign Gifts and Decorations Act, to expand and clarify this clause. It permits foreign gifts of “minimal value” as well as allowing Congress to grant conditional authority for federal officials to accept gifts on behalf of the United States.
There are many examples of foreign governments or their people gifting tokens of their appreciation to America. For example, the Resolute desk was a gift from Queen Victoria to the US, accepted by President Rutherford B. Hayes in 1880. It was made from the oak timbers of the British Arctic exploration ship HMS Resolute. Also, the French people raised the money for the Statue of Liberty and Americans donated money for its base. The Statue was accepted by President Cleveland in 1886 on behalf of the American people. More recently, charges have been made against President Trump that, by accepting an expensive jetliner from Qatar, he had violated the foreign emolument clause. Additionally, the UAE invested $2 billion in Trump family’s crypto company, World Liberty Financial, while the Trump Organization, working with the Qatari government, is building an 80-floor hotel in Dubai. At the time of this writing, no federal court has ruled on the constitutionality of any of President Trump’s foreign business transactions.
- The plan was introduced on the floor by Virginian Edmund Randolf. ⇧
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Madison’s plan was a dramatic departure from the Articles of
Confederation. It favored the larger (by population) states
over the smaller states, and conferred much more power to the
national government at the expense of the states’
governments. It called for a bicameral legislature with
both chambers’ membership based on population. No executive
office was mentioned.
Patterson’s plan favored the smaller states, as it proposed a unicameral legislature with equal representation for every state, as well as maintaining the authority that states’ governments had under the Articles. This plan mentioned a chief executive independent of the legislature. ⇧ - The single most lethal check on the president is impeachment — removal from office — a method based entirely in the Congress but with responsibilities divided between the two houses. The House votes for a bill of impeachment, a kind of indictment. The Senate serves as a trial court, where the charges against the president are heard and the Senators vote as individuals on the guilt or innocence of the president. ⇧
- An emolument is a salary, fee or a form of profit from employment or holding a position or office. The term includes anything of value that personally benefits the individual holding an office. The word “emolument” was defined in the eighteenth century to mean “profit,” “advantage,” “benefit,” and “comfort.” Founders such as Washington and Madison used the word when referring to “the consequences of ordinary business dealings.” ⇧
- The clause reads: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased 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. ⇧
- As the delegates debated how to compensate the president, Ben Franklin half-seriously proposed that the president not be paid. His motion was not adopted. ⇧
- The clause reads: 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. ⇧
- During his time in France as America’s ambassador, Ben Franklin was given a lavish snuff box, and he sought congressional approval to accept it, which was granted. ⇧