The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, the Supreme Court effectively ended the Emoluments Clauses litigation. Howard Bashman rounded up more than a dozen media accounts. I'd like to commend Adam Liptak's report for the New York Times. His account stands out, because he did not accept the Plaintiffs interpretation of the Foreign Emoluments Clauses as fact. Adam wrote:
The move means that there will be no definitive Supreme Court ruling on the meaning of the two provisions of the Constitution concerning emoluments, a term that means compensation for labor or services. One provision, the domestic emoluments clause, bars the president from receiving "any other emolument" from the federal government or the states beyond his official compensation.
The other provision, the foreign emoluments clause, bars anyone holding a federal "office of profit or trust" from accepting "any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state" without the consent of Congress.
First, Adam did not define an"emolument" as anything of value, or something to that effect. He used a far more neutral definition: "compensation for labor or services." Second, Adam did not state, as a matter of fact, that the Foreign Emoluments Clause applies to the President. Instead, he quoted the language used in the Constitution.
Way back in September 2017, Adam wrote about the briefs Seth Barrett Tillman and I filed in the CREW litigation. Even then, he understood the nuance of our position. And to this day, Adam stated the position accurately for the Times.
Other accounts, however, simply stated as fact that the phrase "emoluments" refers to a much broader range of payments. And most accounts simply assumed that the Foreign Emoluments Clause applies to the President.
Now that the Supreme Court has denied review, we likely will not get any definitive judicial resolution of this issue. I've pasted the other press clippings below the jump.
It means there is no definitive answer after years of legal wrangling over the Constitution's emoluments clauses, which prohibit presidents and others from accepting gifts or payments from foreign governments without congressional approval.
The justices in brief written orders wiped out a pair of cases alleging Mr. Trump was violating the Constitution's emoluments clauses, which prohibit the president from receiving things of value from foreign and state governments.
Aiming to limit the potential for outside influence on the president, the Constitution's Framers included language asserting that "no 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." A second constitutional provision specifically prohibits the president from receiving domestic emoluments.
The action means that after four years of litigation the top U.S. judicial body will not rule on the meaning and scope of the Constitution's so-called emoluments provisions, a largely untested area of constitutional law. The provisions bar presidents from accepting gifts or payments from foreign and state governments without congressional approval.
Both lawsuits involved the Constitution's emoluments clauses, which forbid the president from receiving "any present, emolument, office or title of any kind whatever from any king, prince, or foreign state" or any state in the U.S.
The outcome in the cases also signals how ineffective the courts proved to be in policing Trump's alleged violations of the emoluments clauses, which prohibit any president from receiving funds related to their official duties from any foreign or state government.
At the heart of the cases is the so-called emoluments clause, which bars presidents from receiving gifts from foreign or state governments while in office without congressional consent.