Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Foreign Emoluments, and Incompatibility Clauses

Everything you ever wanted to know about the Foreign Emoluments Clause.

Exactly eight years ago, President Trump was sued for violating the Foreign Emoluments Clause. Most people had never heard of this provision of the Constitution. Ultimately, none of the various cases made it to a final judgment. President Biden's inauguration in January 2021 ended all of the litigation.

Four years later, we expect litigation over the Emoluments Clause to resume at any minute.

I am happy to share the fifth installment of my ten-part series with Seth Barrett Tillman on the offices and officers of the Constitution.

Josh Blackman & Seth Barrett Tillman, Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Incompatibility, and Foreign Emoluments Clauses, 63(3) S. Tex. L. Rev. 237–425 (Oct. 2024), <https://ssrn.com/abstract=4527680>;

Here is the abstract:

The Constitution of 1788's original seven articles include twenty-two provisions that refer to "offices" and "officers." Some clauses use the words "office" or "officer," standing alone and unmodified. Other clauses use the word "office" or "officer" followed by a modifier, such as "of the United States," "under the United States," or "under the Authority of the United States." We refer to the language in these twenty-two provisions as the Constitution's divergent "office"- and "officer"-language.

This Article is the fifth installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution's divergent "office"- and "officer"-language. The third installment analyzed the phrase "Officers of the United States," which is used in the Appointment Clause, Impeachment Clause, Commissions Clause, and Oath or Affirmation Clause. The fourth installment traced the history of the "Office . . . under the United States" drafting convention.

This fifth installment will discuss how the "Office . . . under the United States" drafting convention is used in the Constitution. The Appointments Clause defines the phrase "officers of the United States." The Constitution, by contrast, does not provide a similar definition for the phrase "Office . . . under the United States." Here, the Framers relied on a phrase that was not expressly defined in the Constitution. This decision has led to some confusion. Of course, the phrase "Office . . . under the United States" is not unique in this way. The Framers used other such phrases that were not expressly defined by the Constitution's text. Rather, these phrases took their meaning from historical usage.

We also took a very deep dive in gifts given to Presidents. Much of this research, as best as we can tell, has not been published in the context of the Foreign Emoluments Clause. Here is a summary:

Section V traces the relationship between the Foreign Emoluments Clause and the presidency, from Washington to Trump. In total, we will discuss foreign gifts given to more than thirty presidencies. We divide these presidencies into seven categories. Only a handful of these foreign gifts have been studied in past scholarship and litigation concerning the Foreign Emoluments Clause. Category #1 includes four presidents from the Early Republic, who took actions that are consistent with our position that the President is not subject to the Foreign Emoluments Clause: Presidents George Washington, Thomas Jefferson, James Madison, and James Monroe. Category #2 includes presidents who expressly asked Congress to dispose of foreign gifts: Presidents Andrew Jackson, Martin Van Buren, John Tyler, and Abraham Lincoln. Category #3 includes presidents who unilaterally disposed of foreign gifts in government archives: Presidents John Quincy Adams, Abraham Lincoln (yes, Lincoln again), and Rutherford B. Hayes. Category #4 includes six presidents who unilaterally donated foreign state gifts to the Smithsonian Institute: Presidents Franklin Pierce, James Buchanan, Andrew Johnson, Grover Cleveland, Theodore Roosevelt, and Calvin Coolidge. Category #5 includes presidents who (likely) accepted foreign gifts and did not surrender them. We hedge for reasons that will be discussed below. Category #6 discusses four first ladies who accepted valuable foreign gifts: Mary Todd Lincoln, Eliza Johnson, Eleanor Roosevelt, and Jacqueline Kennedy. Category #7 turns to three modern presidents: Presidents Richard Nixon, Barack Obama, and Donald Trump. Admittedly, the chronology does not follow a straight path. It seems presidential efforts to comply with the Foreign Emoluments Clause peaked in the 1830s—and went downhill from there. There are no clear streams of authority. The history is a muddled puddle. Section V concludes by trying to make sense of these categories with two principles: practices during the Early Republic are more probative than later-in-time practices; and traditions of defiance trump traditions of surrender.

We expect to publish Part VI in 2025, and the remaining four parts to follow in due course.