Emoluments Clause – Constitution Article 1 §9.8

On Wednesdays we study the Constitution. I’m about to wrap up Article 1, Section 9, which ostensibly limits the powers of Congress. Last week I learned about Article 1 §9.7, which deals with appropriations and accounting. This week it’s Article 1 §9.8, which explains why little American girls only get Disney princesses instead of the real ones. Oh, and it’s also the clause that could get Trump impeached.

Constitution Article 1 §9.8

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.

No Nobility

In one of Joseph Ellis’ excellent biographies of the founders, he related how they had bickered about how the U.S. president should be addressed. John Adams suggested some outlandish thing like, “His Most Excellent Royal Majesty.” Fortunately, they had this clause to shut him down, and settled on “Mr. President.” It’s hard to imagine reading their flowery prose today, but these guys really were austere minimalists for their day.

Not only did this clause construct the foundation of Disney’s empire, it laid out in one short sentence one of the most cherished principles of American society. Nobody gets to inherit rank. Money yes. But no one is officially better than everyone else by virtue of their birth. This is the most unequivocal statement of equality in the Constitution. (“All men are created equal” is better, but it’s actually in the Declaration of Independence, which isn’t actually law.) As a nation we have failed to live up to that in many ways for every single day of our existence (even elsewhere in the Constitution).

Service versus Employment

e·mol·u·ment

noun: emolument; plural noun: emoluments

a salary, fee, or profit from employment or office.

Not granting titles of nobility was pretty much a given. But the second part, which lends the name “Emolument Clause” to 1 §9.8, wasn’t quite as clear. In 1871, the Attorney General clarified that U.S. officials may do a solid for foreign powers – you know, stuff like negotiating treaties on their behalf. But U.S. officials may not work for a foreign power. “Work” meaning of course getting paid for services rendered. Not to mix church and state here, but

No man can serve two masters

Matthew 6:24

The Donald

So, Donny. This clause has never been more significant. Trump retains ownership in companies that do business with foreign diplomats, state-controlled companies, and state-owned television channels. See Trump International Hotel Washington, D.C., where foreign governments currently feel compelled to house their representatives when in Washington; a raft of Chinese patents and trademarks awarded to Trump and his daughter since the beginning of his presidency, and most recently, a big fat loan from the Chinese government.

You Mean Humperdinck Lives?

The phrase “without the consent of Congress” (plus the fact that the clause is in Article 1) indicates that Congress should be responsible for determining when the clause has been violated, but the current Republican majority refuses to take any action not expressly sanctioned by the Orange One, so there is a boatload of lawsuits from Democratic lawmakers, states’ AG’s, and nonprofit watchdog groups.

Arguments that Trump’s business dealings are not violations of the Emolument Clause are what academics call “some old bullshit.” Only pathological liars or people who have not read the Constitution could make them. Nevertheless, lawsuits on the issue face an uphill battle. Since the 44 presidents who preceded him were careful to avoid conflicts of interest, there isn’t a lot of precedent for dealing with Trump’s Constitutional violations.