Word of the Day: Emolument

November 28, 2016

President-elect Trump has brought back a word into the modern American vocabulary: emolument. Merriam-Webster defines an emolument as “the returns from office or employment, usually in the form of compensation.” The U.S. Constitution prohibits any person holding a federal “office of profit or trust” from accepting, without the consent of Congress, “any emolument from a king, prince, or foreign state.”

It has become popular to question whether some of President-elect Trump’s foreign business deals will be prohibited emoluments under the Constitution. These deals clearly present deep concerns about conflict of interests that sitting presidents should avoid and may be problematic under other laws. But it is far from certain that that the Constitution itself prohibits them. The Supreme Court has never ruled on the Emoluments Clause, and the clause’s language leaves open several questions.

First, the Constitution prohibits only payments from foreign states. Is a payment from a corporation over which a foreign state exercises some degree of control the same as a payment from the foreign state? President Obama’s legal counsel decided the Nobel Peace Prize did not constitute a payment from a foreign state because of the separation between the Nobel committee and the Norwegian government. In reaching this conclusion, President Obama’s legal counsel opined that the issue was “necessarily a fact-bound inquiry,” meaning it would vary from case to case.

Second, it is not entirely free from doubt that the Emoluments Clause applies to elected officials like the president. Although in my opinion the better argument is that it does, other scholars have pointed out the Constitution uses different language where the drafters wanted to unambiguously include elected officials.

Third, the language of the Emoluments Clause prohibits only the person holding a federal office from receiving the payment. The money in these deals would go not to President-elect Trump but to corporations he owns. It may seem a slim distinction to separate the corporation from its owner, but it is a distinction that we make for how taxes get paid, for who is liable for a corporation’s debts, and for just about every other way a corporation interacts with the legal world.

Most significantly, it is not clear who would have standing to sue to enforce the Emoluments Clause. Standing is a concept the federal courts use to ensure that a person bringing a lawsuit has suffered concrete harm and not just a generalized grievance. The standing doctrine helps to ensure that our courts maintain their judicial role and not become mini-legislatures.Although I find a President Trump’s foreign business dealings an outrageous conflict of interest, that is not a concrete injury. Rather, my complaint is a generalized grievance that I simply do not like the way he is running his administration. That is not enough to give me standing.

An example of a litigant that might have standing to enforce the Emoluments Clause might be a business that loses a federal contract because of an allegation that a prohibited payment was paid to a President Trump. In this case, the loss of the contract would be a concrete harm that would give rise to standing. But, the remedy would have to deal with the harm which would be compensation for the lost contract or a rebidding of the contract.Some constitutional provisions are matters for the political branches and not for the federal courts. The Emoluments Clause may be one of these provisions for Congress to enforce.

Before you write your representative, a cautionary note is in order. When it comes to constitutional issues, political processes provide political answers. As we have learned, political winds can change quickly and dramatically. We may not be so happy with a political solution to tomorrow’s constitutional issue.