Senator Blumenthal's Emoluments Clause brief conflicts with INS v. Chadha

Resolutions to approve the acceptance of foreign gifts and emoluments must be presented to the President

|The Volokh Conspiracy |

[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.

NEXT: Today in Supreme Court History: November 4, 1992

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  1. You don’t often see people go out on a limb to claim that it’s legal to bribe the President.

    1. I can understand it as an academic argument, I guess; The Washington rule does usually drive interpretation of clauses involving the President: If Washington did it, and nobody complained, then barring a subsequent amendment, it’s OK.

      Note, though, that “gift” and “bribe” are not quite the same thing, so we can’t really assume that all foreign gifts actually ARE bribes. (Though that might be the way to bet, if it’s anything of serious value, given the current state of international relations.)

      But, let’s suppose emoluments are always bribes. That concern does seem to have motivated the clause, after all.

      What does this imply for the motives behind the Blumenthal brief? Is Blumenthal motivated by a desire that Congress be able to authorize the acceptance of bribes by the President’s subordinates contrary to his own will?

      1. Thinking about it further, Blumenthal is probably motivated by a situation where a member of Congress receives an emolument, (Which for the sake of argument we assume is a bribe.) Congress approves it, and the President vetoes. The application to the President’s own subordinates likely wasn’t considered.

        They’re trying to preserve their institutional capacity to accept foreign bribes. That does make sense as a motive.

      2. “If Washington did it, and nobody complained, then barring a subsequent amendment, it’s OK.”

        Nonsense. Washington was WASHINGTON. They’d cut him slack where someone else might not get any. Would you argue that if a cop ever let someone off with a warning, then anyone else doing the same thing is OK? How about if a prosecutor cut someone a break, and didn’t charge a crime when they could have? That makes it OK, for everyone else?

        1. Silly or not, that actually used to be a standard principle of constitutional interpretation: Washington did no wrong, so if he did it, it wasn’t wrong. Likewise, if Washington thought it was wrong to do… There’s a reason no President ran for a third term until FDR: Washington quit at two terms, and body before FDR had the gall to do something Washington had thought was unseemly.

          1. That some people believe something does not imply that it is correct, and confers no requirement to do so.

            1. I’m not saying it was necessarily a correct principle of constitutional interpretation, but it did use to be one.

              1. Divine right of kings used to be a thing, too.

      3. “Note, though, that “gift” and “bribe” are not quite the same thing, so we can’t really assume that all foreign gifts actually ARE bribes.”

        We can if this proposed interpretation is upheld, because there would be no consequence of any difference; both are fully Constitutional.

        1. I wasn’t aware that the Constitution was a criminal code. Which provision of the Constitution are people charged under when they are prosecuted for bribery?

          1. For Presidents, that would be Article 2, Section 4, which specifically mentions bribery as a cause for impeachment.

          2. “I wasn’t aware that the Constitution was a criminal code.”

            Nor I. From whom did you obtain this information?

            “Which provision of the Constitution are people charged under when they are prosecuted for bribery?”

            The President is answerable solely to the Congress for high crimes and misdemeanors. Is this a revelation to you as well?

      4. First, gift exchange of items of nominal value between heads of state is an ancient tradition going back to at least the Bronze Age. There is no reasonable interpretation that the founders intended to require the president to commit a faux pas by refusing all gifts.

        Another thing of note is that many gifts to the president are to the office of the president, not whomever is sitting in the chair at the time.

        Then you have to consider that a lot of gifts are actually historical artifacts of various types (or become historical artifacts by nature of the gift), and end up either in the White House, the Smithsonian, or in the museum section of the presidential libraries. You aren’t talking cash (ever) or even modern goods (rarely). This undermines their value as bribes.

        Finally, while constitutional emoluents might not apply to elected officials, statutory laws against bribery certainly do.

        1. ” There is no reasonable interpretation that the founders intended to require the president to commit a faux pas by refusing all gifts.”

          Correct. The President accepts gifts as a representative of the people of the United States, and the gift becomes the property of the people of the United States.
          Now, if the President is then misappropriating that property…

          1. There’s a law in place allowing them to pay full market value and take personal possession of gifts they particularly like. I’m not clear on all the details, though.

    2. It’s pretty clear that Blackman and Tillman are going to milk this emoluments business for all it’s worth.

      1. Might as well, as long as Trump is in office, and Democrats are accusing him of violating it every time somebody stays at one of his hotels. After all, the clause is going to disappear back into obscurity as soon as a Democrat takes office, they’ve only got a limited window to write about it with the potential people will bother reading what they write.

        1. Well, I don’t recall it coming up during any Administration, R or D, before Trump. So maybe there really is fire there.

          In any case, I find Blackman’s position strange. You can argue that Blumenthal wants to preserve the ability of Congress to take bribes – though I’d like to hear from Blumenthal, rather than you, what the motivation here is. But regardless, Blackman seems to think the framers thought it just fine for members of Congress and the President to take bribes, but thought that if underlings did so it threatened the Republic.

          Sounds strange to me.

          1. As I point out, emoluments are “gifts”, and not all gifts are actually bribes. So saying that the framers thought it fine for members of Congress and the President to accept bribes is somewhat misrepresenting what was going on.

            Bribes were treated separately from emoluments.

            1. The normal english meaning of emolument is a payment in return for service and so a true gift, that is a gift that is not a bribe in disguise, is not an emolument. No need to panic though, that doesn’t open a gaping hole in the Foreign Emoluments clause because it prohibits “presents” too.

          2. When was the last President who had substantial active business interests?

            You’d have to go a long way back. Most were professional politicians for a considerable time before taking office.

            1. “When was the last President who had substantial active business interests?”

              Depends on your definitions. The Clintons had interests in Whitewater, and pretty much all of them except Trump in recent memory had book deals. I mean, unless you believe that the dog actually wrote “Millie’s Book”.
              Carter and his farm, I think, was the answer you expected.

          3. re: “Blackman seems to think the framers thought it just fine for members of Congress and the President to take bribes, but thought that if underlings did so it threatened the Republic.”

            That’s not Blackman’s argument about the framers’ thinking at all.

            The framers thought that taking bribes was bad but that if members of Congress or the President did it, we would take care of that directly at the ballot box. Or if it got too egregious, through impeachment. Either way, it’s a political process for those people, not a criminal one. Underlings (that is, appointees), however, can’t be simply voted out. You need some other process to get rid of them. And that, according to Blackman, is the reason behind the Emoluments Clause.

            1. Do you have any actual sources for the Framers having this particular worry? Because back in the day Presidential appointees were very much an ingredient in the political process.

              1. First, note that I’m not claiming to know what the Framers actually thought. I was merely attempting to explain what Blackman said – which is distinctly not the strawman that bernard11 tried to present.

                re: my sources for believing that the Framers thought that voters should take care of most disciplining of elected officials – I got that primarily from the Federalist Papers (supported, in this case, by the Anti-Federalist Papers – unlike on some issues, I found no appreciable disagreement on this point). Unfortunately, it’s been quite a while since I read them so I can’t point to any particular passages.

                Honestly, I don’t remember thinking much about the disciplining of appointed officers until this brouhaha over the interpretation of the Emoluments Clause. But to the extent I have any source at all, it would be the Emoluments Clause itself. Clearly they were worried about something. And if it wasn’t elected officials, that only leaves subordinates and bureaucrats.

                1. The problem is Blackman and Tillman don’t give any credible evidence that the framers (and ratifiers) weren’t worried about elected officials being swayed by foreign influence and corruption. Their post-ratification historical examples are arguable at best, and there is a good deal of academic criticism of their position, which they never see fit to answer or address.

            2. “The framers thought that taking bribes was bad but that if members of Congress or the President did it, we would take care of that directly at the ballot box. Or if it got too egregious, through impeachment.”

              If that’s indeed what they thought, why include the clause in the constitution at all? It seems more likely that they wanted the constitution to be understood as preventing ANYBODY in this new federal government from being influenced by foreign corruption.

              I apologize for capitalizing like Hihn.

              1. My opinion? Because there are (and always will be) people who get into government through channels other than election. Without that clause, how do you get rid of corrupt appointees? Remember that at the time of the Founding, States were the primary source of law enforcement. But accepting a bribe at the federal level would break no state law.

                It should probably also be pointed out that an emolument was (and usually is still) interpreted as a long-running payment for services. It was generally a job (sometimes a sinecure) with a salary. A one-time payoff is still a bribe but it’s not really an emolument as that word is understood.

                1. I’m not sure how the clause would help to get rid of corrupt appointees. Who does it empower to remove them? That’s one the reasons I don’t really understand Blackman/Tillman’s argument here.

        2. ” After all, the clause is going to disappear back into obscurity as soon as a Democrat takes office”

          Your assessment is that Republicans are incapable learning from Democrats?
          I mean, you’d know better than I would about that topic, but I’m still a bit doubtful.

          1. That’s my general experience: “The Stupid party” is an old slang term among conservatives for the GOP. (The Democrats are The Evil party.)

            1. Slow, maybe. But they learn.
              Kennedy smoked Nixon because he understood television. Reagan smoked everybody, because he learned that lesson.

              Obama won because W screwed up the Middle East pretty badly, but also because his team understood social media. Now we have a President who barely understands social media, but he understood it better than “Pokemon GO TO THE POLLS!”.

              The problem is, the next D Prez is going to put their business interests into a blind trust, which largely kills this kind of attack. I’d bet pretty highly that the same is true of the next R Prez.

              1. It’s relatively easy to put your business interests in a blind trust when you’re not actively running the businesses in question, you’re just a stockholder.

                It’s somewhat more difficult if you’re the CEO.

                Requiring such assets to go into a blind trust would effectively bar from the office any active businessman who wasn’t willing to see most of his net worth, (Maybe all of it and then some.) go up in smoke.

                Professional politicians already have too many advantages in running for office, they don’t need that one added.

          2. If we get a Democrat who owns a bunch of properties that visitors from foreign governments keep staying at, i’m sure Republicans will attack over that.

            But even if the next Democrat president doesn’t put everything into a blind trust (as has been tradition for Presidents years before President Trump broke with tradition), they’re unlikely to own the kinds of assets where this kind of attack makes sense.

            So no. I don’t think Republicans wouldn’t argue this if it came up. I just think it won’t come up again.

            1. “If we get a Democrat who owns a bunch of properties that visitors from foreign governments keep staying at, i’m sure Republicans will attack over that.”

              If Trump had never come along, and we got a Democrat who owned a bunch of properties that visitors from foreign governments keep paying for, I’m sure Republicans would have attacked over that, and a bunch of Democrats would have decided to remain silent about the issue.
              The point is “It’s OK when we do it” applies to large swathes of both sides.

  2. This case is fraught with potential legislative mischief. For this alone – 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. – the case should be tossed. I don’t think it is a good idea to adopt Senator Blumenthal’s interpretation of the clause.

    Congress is sclerotic enough. No need to exacerbate the problems.

    1. I’m not sure I want a house of Congress able to vote themselves the ability to accept bribes.

      1. They’ve already voted themselves the ability to commit insider trading, you’d think that was profitable enough.

      2. Yeah, precisely my fear. The path Senator Blumenthal advocates is just a recipe for Congressional mischief. No thanks. They already really suck….why have them really, REALLY suck?

    2. That doesn’t seem to be a constitutional concern.

      And your trust in the President over Congress is very much against the Founders’ vision.

  3. I get that the Constitution doesn’t really address emoluments vis-à-vis the President; the clause is in Art. I after all.

    I guess what I don’t get is why the Founders did not feel the need to include a similar clause in Art. II.

    1. There is a separate emoluments clause in article ii that covers only the President:
      “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.”

      Which of course butresses the argument that the article 1 clause does not apply to the President.

      1. Yabut the Art. I clause was particularly about receiving emoluments from foreign actors (King, Prince, or foreign State), whereas the Art II clause is about receiving emoluments from the states.

        1. They were concerned that a state (New York, I’m looking at you.) might buy off a President to get favorable treatment from the executive branch.

          1. Exactly, so why didn’t the Founders extend that to precluding a foreign entity from buying off a President?

            1. Just didn’t think people needed to be told that… it was so obvious. Same reason so many marriage statutes forget to mention that the people who wanted to be married had to be of opposite gender. They MEANT that, but didn’t think there was any need to come out and SAY it. So, since they didn’t say it, it wasn’t actually the law (eventually).

              1. So, since they didn’t say it, it wasn’t actually the law (eventually).

                What? No. Not at all. In states where the legislation didn’t specify opposite-sex only, the lawsuits on that basis lost.

                The lawsuits that won were the ones that argued it violated constitutional principles.

                The text not specifying gender was entirely irrelevant.

                1. ” In states where the legislation didn’t specify opposite-sex only, the lawsuits on that basis lost.”

                  Until they won, in California.

                  Then the people were outraged at this outcome, and the agitators got them to write a new bit into the state Constitution, that fixed the mistake… and retroactively invalidated a bunch of peoples’ marriages. THAT’s a Constitutional violation, and ultimately why same-sex marriages are legal now.

                  “The text not specifying gender was entirely irrelevant.”

                  In the sense that it was crucial.

                  1. “THAT’s a Constitutional violation, and ultimately why same-sex marriages are legal now.”

                    No, the judiciary decided SSM ought to be legal, and didn’t really care what the public thought about it, and THAT ultimately, is why same sex marriages are legal now. Everything else was just an excuse.

                    It was a judicial fad, combined with the realization that nobody could stop them. I suspect that realization hasn’t run its course yet, and worry more than a little what they’ll next get into their heads to impose on everybody.

                    1. No, they got together and asked themselves “what would inconvenience Mr. Brett Bellmore more? We want that ruling”.

      2. “Which of course butresses the argument that the article 1 clause does not apply to the President.”

        That’s arguable. But Blackman and Tillman argue that the foreign emoluments clause doesn’t apply to elected Congressmen either. Even though it’s in article 1.

    2. The Founders left a lot of assumptions out to keep the document simple. You wouldn’t think you’d HAVE to spell out that taking things from foreign governments isn’t a thing to do, if you want to appear to be leading your country in its citizens’ interests.

      The only thing different about this Prez is that he doesn’t care if it always looks like he’s putting his own interests in front of the People’s… he’s never done anything else and he got elected, so why change now?

  4. I don’t see how the Presentment Clause, which is about legislation, comes into play restricting the Emoluments Clause, which is about other duties of Congress.

    Does the Presentment Clause restrict Advise and Consent?

    1. Similarly for adjournments of over three days by either house of Congress. They require the consent of the other house, but if Congress can only express consent through statutes does the President get a veto?

    2. No, because Advise and Consent isn’t a power of Congress, it’s a power of the Senate. Each house acts independently within their own powers – so (using a recent example) the House can authorize an impeachment inquiry without the Senate and President agreeing, because it’s a power of the House itself. Just as the Senate alone can consent to various appointments, because it’s a power of the Senate itself rather than the Congress.

      Not that this makes it clear that for the Congress to act requires presidential concurrence. I’m not sure I buy that, I’ll have to think on it a while, but I’m leaning towards No.

      On the other hand there’s the fundamental question of science: what do you know, and why do you think you know it? I know Congress said “something.” How do I know it aside from the typical legislative process? I’m not sure – it’s not something I’ve really considered.

      Take the (valid) complaints by Republicans about the current House impeachment investigation as an example of “what do we know, and how do we think we know it.” The House has two implicit powers of investigation under the constitution – to understand the effect of their laws they pass (and ensure the faithful execution thereof) and to detect the commission of “high crimes and misdemeanors” by anyone they can impeach. House rules enacted at the start of the term empowered statutory investigations by all committees, so those investigations are authorized by the House acting alone. But the House hasn’t authorized any investigation under their impeachment power because that wasn’t part of the rules enactment at the start of the term, nor (annoyingly) last week.

      When someone says “the House is conducting an impeachment inquiry” we have to ask, “how do we know?” Is a simple claim by an individual house member sufficient? If so, is that sufficient to determine that a bill was passed? Can a minority member send a bill over to the Senate with a letter that says “we passed this in the house unanimously” and that’s sufficient to get it enacted? The answers to all of these should be the same – No. The way we know what the House does is by a vote, even if it’s a stupid one. So the House could pass (by vote) a rule that the Speaker can return an impeachment at any time and we’d have to accept that as binding, even if it’s dumb.

      The same applies to Congress – how do we know what Congress as a whole has done, other than through the usual legislative process? A joint session should work, because then we know they voted on the same thing. Taking a bill through reconciliation and getting a final vote should probably work, though that leaves it a little up in the air on how we track it down.

      This is why I think Blackman has to be wrong – there is at least one way to know what Congress intends without presidential concurrence, so even if that’s the simplest and clearest way, it can’t be mandatory.

    3. I guess that would be an illustrative example. Suppose the President nominates a Judge and the Senate confirms that nomination, is the President given an opportunity to veto the Senate’s confirmation? I understand why this isn’t likely to occur, but the question is whether it even goes back to the President for his signature.

  5. I don’t agree that it conflicts with INS v. Chadha. The issue just wasn’t before the Court in that case and they had no opportunity to consider it. It’s such a different thing (the meaning of “consent” under the circumstances) that it would have been unreasonable to think the Court was even considering the issue. The best argument for Congress’s consent not including presentment to the President is this: The Constitution only requires the consent of Congress, not the consent of the President. Since the Emoluments clause applies to officers besides the President but there is no requirement that the President consent to their having them (as long as Congress approves), it doesn’t make sense that the President has the power to veto or pocket veto any bill providing consent.

    The argument about whether it applies to Congress is a more difficult one. I think there has to be some kind of caselaw about what “officers” means under the Constitution. Assuming we’re dealing with a complete vacuum here, I don’t necessarily follow the logic here. I fully agree that each house can only judge its own members, but I don’t agree that consent or lack of consent is judging them. I suppose it depends on remedy. If the Senate fails to consent to an emolument a Representative received but the House doesn’t remove that Representative, the Senate isn’t invading on the House’s powers at all.

    1. Of course you are right, but you and I are not under the same constraints as Blackman and Tillman.

      1. This was really a sad performance, though.

        Advocacy sometimes means not making every argument you can.

        1. Credibility also means not making arguments solely because your favorite social club wants you to make them.

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