The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[This post is co-authored with Professor Seth Barrett Tillman]
The Foreign Emoluments Clause provides that "[N]o Person holding any Office of Profit or Trust under [the United States], 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." In a series of briefs and articles, we have explained that the phrase "Office of Profit or Trust under [the United States]" applies to appointed federal officers, but not to elected officials. Therefore, the Foreign Emoluments Clause does not forbid the President or members of Congress from accepting foreign government gifts and emoluments. Congressional consent is not a precondition to their accepting such things. By contrast, appointed officers need congressional consent before accepting foreign government gifts and emoluments. This understanding of the operation of the clause is consistent with the original practice of the government under Washington, his administration, and his successors in the early Republic who were Framers and founders, and their administrations.
When Congress has chosen to grant its consent, it has acted by statute: an instrument passed by both houses of Congress and presented to the President. Often, such congressional instruments—which were uniformly statutes—were frequently stylized or reported as resolutions, resolves, or joint resolutions. INS v. Chadha (1983) teaches that these resolutions, like any other statute however stylized, must comply with the requirements of bicameralism and presentment—that is, the resolutions must be approved by both houses of Congress and be presented to the President. The President can sign the resolution or veto the resolution. If he does neither, the resolution will go into effect by operation of law, or fail as a pocket veto if presented to the President 10 days prior to Congress' adjournment.
However, Senator Blumenthal and other Democratic members of Congress articulated a different theory about congressional instruments that consent to foreign state gifts and emoluments. In a recent brief filed in Blumenthal v. Trump, the plaintiffs stated that the President plays no role when Congress, under the Foreign Emoluments Clause, grants consent to a covered officer's accepting a foreign state gift or emolument.
The Framers' decision to give Congress an ongoing procedural role in vetting foreign emoluments—an exclusive authority exercised without the President—was a deliberate one. Unlike the Foreign Emoluments Clause, some constitutional prohibitions give Congress no special role to play, e.g., U.S. Const. art. II, § 1, cl. 7 (Domestic Emoluments Clause), while others require only that certain acts be authorized "by Law," e.g., id. art. I, § 9, cl. 7 (Appropriations Clause).
Plaintiffs' Opposition Brief at 9–10 (D.C. Cir. Oct. 22, 2019) (emphasis added). The plaintiffs contend that a concurrent resolution would suffice to approve a foreign state gift or emolument. This sort of instrument is merely passed by both houses of Congress and is not separately presented to the President. Plaintiffs' position is novel: such a concurrent resolution cannot have the force of law. Instead, the Constitution, under settled Supreme Court precedent, demands that Congress must use a bona fide statute, even if stylized as a so-called joint resolution.
It is not entirely clear why some bills are denominated a joint resolution and others an act of Congress. The latter term may be reserved for more important government actions and policies affecting the country and its people at large, including rules having permanent prospective effect (until amended), along with significant spending bills. The former term, however, tends to involve private members' bills, small amounts of spending, and policies in effect for a limited amount of time or in only a part of the country. All of these joint resolutions (just like any other statute) are presented to the President.
As a general matter, where a constitutional provision calls for congressional action, the default position is that congress acts by law—bicameral action followed by presentment. This analysis does not turn on how the instrument is stylized: resolution or law. The Blumenthal plaintiffs argue that the Foreign Emoluments Clause is somehow different and that its "consent" language means that Congress can act by a mere concurrent resolution "without [presentment to] the President."
The Blumenthal brief's own appendices undermine the plaintiffs' argument. The brief includes lengthy extracts from Statutes at Large. In these records, Congress consents to appointed officers' accepting gifts from foreign states. But every such entry (as far as we can tell) in Statutes at Large appears to be a statute—albeit, some might be labelled a resolution. This particular nomenclature is not surprising for a foreign state gift, a lesser matter, having limited effect in regard to one person and one time. If even one of plaintiffs' many examples illustrates Congress' acting by a genuine concurrent resolution absent presentment to the President, the plaintiffs have not identified it as such. The corpus of American history and congressional practice cuts against Senator Blumenthal's theory.
More importantly, plaintiffs' argument conflicts with INS v. Chadha: a canonical separation-of-powers case. This decision identified six exceptions to the general rule of bicameralism and presentment. None involved the Foreign Emoluments Clause or its "consent" language. Indeed, even the dissenters in Chadha would not have embraced what plaintiffs argue for in Blumenthal. In Chadha, congressional action absent presentment was "authorized" by a prior procedurally proper federal statute. In Blumenthal, plaintiffs argue that Congress can act by a concurrent resolution absent presentment, and absent any prior authorizing statute. The Blumenthal plaintiffs' position cannot be reconciled with Chadha: congressional action, however stylized, allowing the acceptance of foreign gifts and emoluments must be subjected to bicameralism and presentment.
The Blumenthal plaintiffs have argued that the Foreign Emoluments Clause applies to appointed officers as well as to elected officials like the President and members of Congress. But applying the Foreign Emoluments Clause to members of Congress runs afoul of the principle of unicameral autonomy. Generally, one house of Congress does not sit in judgment of another house or its members: each sets its own rules, and each judges its own members. Plaintiffs' position, however, would allow each house to monitor members of the other house.
Additionally, Plaintiffs' position creates other structural problems. For example, if a member of Congress were subject to the Foreign Emoluments Clause, then the President would have a role in allowing that member to accept a foreign state gift or emolument. Specifically, when Congress enacts a statue to authorize a specific member of Congress to accept a foreign state gift or emolument, then per Chadha, the President would have to sign that bill. Such a process puts members of Congress in the President's pocket.
Finally, if the Foreign Emoluments Clause applies to the President, then per Chadha, the President would play a role in approving his own acceptance of foreign state gifts. That is, the very congressional statute approving a foreign state gift would be presented to the President who seeks to accept that gift.
All these unsound results (and others) flow from plaintiffs' reading of the Foreign Emoluments Clause. But these odd results disappear if the clause is understood as not applying to elected officials, but is instead given a limited scope: the scope consistent with actual practice during President Washington's administration and that of his successors during the early Republic.