By Rachel Bussett
When checking the headlines this evening to see what would be relevant to talk about I ran across an article on Newsweek with the headline “JUDGE DENIES TRUMP’S REQUEST TO HALT EMOLUMENTS LAWSUIT, ALLOWS CASE TO PROCEED.”
I’m pretty well versed in constitutional law but I have to admit that I had to stop and think about what that headline meant. When I was in law school, I spent two semesters on the basics of federal constitutional law, and then I took four or so more classes on constitutional law because it gets my inner law nerd excited.
But with all that studying of the Constitution, I can’t tell you that I remember even spending a full class on the emoluments clause so it’s rather interesting to me that it is such a focus in the presidential debate.
The Emoluments Clause is really what I like to call a “gift clause.” There are two Emoluments Clauses in the U.S. Constitution. The first is found in Article 1, Section 9 of the Constitution and is often referred to as the “foreign Emoluments Clause.” Article 1 is actually the article dedicated to the creation and governing of the legislative branch of the government but it is not limited to only the legislative branch.
The Article 1 clause states that “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.”
The purpose of this clause is to prohibit foreign leaders from giving gifts to our leaders which may influence or sway the creation of policy the favors another government other than our own. This was a common practice when our Constitution was drafted and if we look at European government and royalty this still heavily plays into governing.
Further, while there is some dispute among legal scholars about the breadth of the clause, it is universally agreed that it applies to all federal officeholders, elected or appointed, including the president.
The Emoluments Clause is also not limited to the actual giving of gifts. It includes such things as advantages in business relationships and other preferential treatment. Our forefathers wanted those who governed us making decisions based upon what is best for the good of all of the people and not what was good for the politician’s pocket.
Given that our president is an established international businessman, concern about the Emoluments Clause and his business relationships is reasonable. However, the fact that he and other federal officeholders are also business people should not create an automatic assumption of suspicion either. We must balance all the interests.
The second Emoluments Clause is found in Article 2, Section 1 of the Constitution. Article 2 is dedicated to the creation and management of the Executive Branch of the government. This Emoluments Clause is specifically directed to the president and states “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.”
This clause is designed to preserve the president’s independence from Congress to ensure that he isn’t’ influenced in governing by control over his pay.
A third clause which is a kind of Emoluments Clause is the Ineligibility Clause. This clause is found in Article 1, Section 6 also and states “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
This clause is designed to protect the separation of powers built into our constitutional structure. It prohibits federal officers from also serving in Congress and prohibits members of Congress from holding a new office if that new position was created while the individual was a member of Congress or the pay was increased while the individual was a member of Congress.
We experienced this clause as part of the 2018 Canadian County Judicial Elections when a member of the Oklahoma Legislature had to withdraw from a judicial race because his candidacy potentially violated the emoluments clause because a new position was created in our county while he was in office with the legislature.
While all of these clauses are a little obscure from our everyday political discussion, they do play a greater and greater role in our political sphere. As we become more global and less agrarian based on our economy and business, our leaders are more likely to encounter those in business and in government who want to use power to influence the government.
Our forefathers recognized the ability of gifts and money to influence how our country was governed and took steps to protect that. Now as we move forward as a nation that seeks to move away from the traditional notions of politics, we have to figure out how to elect leaders who will not be influenced by emoluments or gifts and the way we are governed.
Rachel Bussett is an Oklahoma City attorney and can be reached at 405-605-8073.
