A constitutional provision without a constitutional law
The previous paper read the emoluments clauses at full textual strength and reconstructed the anti-dependence theory they encode. This paper asks a different question: what has the legal system actually made of that text? The answer, stated plainly, is the central finding of the paper and one of the load-bearing observations of the whole series. For more than two centuries, no court construed either emoluments clause. The first decisions reaching the merits came in a single presidential administration, and within four years all but one of them had been wiped from the books. What stands in the place of doctrine is a body of advisory opinions written by the executive branch about its own conduct, a thinner line of opinions from the legislative branch’s auditor, an accumulation of administrative practice, and a scholarly literature that argues the question precisely because the courts have not answered it. The “constitutional law” of emoluments is, in the main, soft law and accreted practice rather than binding judicial construction.
That is not a neutral fact about an obscure corner of the Constitution. It is itself a finding about the mechanism this series tracks. A prohibition whose meaning has never been fixed by a court that can compel obedience is a prohibition that remains, at its core, negotiable. The actors who interpret it are, with few exceptions, the actors it restrains. The instruments through which it is interpreted carry no binding force and bind no future interpreter. And the one period in which courts came close to settling the matter ended not with a settlement but with a procedural maneuver designed to ensure that nothing would be settled. To call this a body of constitutional law is to use the phrase loosely. What exists is a record of how a hard rule is administered by those it governs, which is a record of how a hard rule becomes a soft one.
The executive interprets the restraint on the executive
The most developed body of emoluments interpretation comes from the Department of Justice’s Office of Legal Counsel, the unit that renders binding-within-the-executive legal advice to the President and the agencies. Over the twentieth century, when a President or an officer faced a question about accepting some honor or benefit, the practice was to ask OLC, and OLC’s answers accumulated into something resembling an internal jurisprudence. A handful of these opinions concern the highest office directly. In 1963, OLC considered whether President Kennedy could accept honorary Irish citizenship and addressed the Foreign Emoluments Clause implications.[^1] In 1981, it concluded that President Reagan could draw his vested California pension without offending the Domestic Emoluments Clause, reasoning that the pension was a right he had earned and fixed six years before taking office, a kind of pre-existing entitlement that the state could not revoke and that was therefore neither a gift nor compensation for present service.[^2] In 2009, it considered whether President Obama’s acceptance of the Nobel Peace Prize violated the Foreign Emoluments Clause and concluded that the prize did not come from a “foreign State” within the meaning of the clause, the committee that awards it being structured to act independently of the Norwegian government.[^3]
A larger volume of opinion addresses lesser officers, especially retired military personnel and federal employees, and it is here that OLC’s working definitions emerge most clearly. The office has treated a consulting fee or stipend from a foreign government as an emolument in the ordinary case, resolving particular requests not by denying that the payment was an emolument but by asking whether its source was truly a foreign state. In a 1986 opinion concerning federal scientists and a foreign public university, OLC concluded the payment was permissible because the university made its own employment decisions independently of the foreign government, not because the consulting fee failed to qualify as an emolument.[^4] The office has gone further, treating a retiree’s share of a law or consulting partnership’s profits as a partial emolument where some portion of that share derives from the partnership’s representation of a foreign government, on the theory that the partnership acts as a conduit and a proportionate slice of the income is attributable to the foreign client even when the individual rendered no direct service to it.[^5] This conduit reasoning is notable because it reaches indirect and entity-mediated benefit, the very kind of channel that the broad reading of the clause requires and that the narrow, official-services reading would exclude.
Two features of this executive-branch jurisprudence deserve emphasis, because they shape what the soft law can and cannot do. The first is its structural position. These are opinions in which the executive branch interprets a constitutional restraint imposed upon the executive branch. There is nothing improper in the practice; agencies must have legal advice, and OLC’s work is generally careful. But an interpreter assessing the limits of its own conduct is differently situated from a neutral tribunal, and the body of opinion that results carries the marks of that position. It tends to resolve hard cases by locating exits, the pension that vested early, the university that decides independently, the prize from a body that is not quite a state, while preserving the broad principle in the abstract. The principle remains generous; the application repeatedly finds room. That pattern is consistent with conscientious lawyering and also consistent with an interpreter inclined, at the margin, toward conclusions that do not constrain the institution it serves.
The second feature is the opinions’ legal status. OLC opinions bind the executive branch internally as a matter of practice, but they are not judicial precedent, create no rights enforceable by outsiders, and do not bind a court or a future administration that chooses to revisit them. They are advice, however weighty. To rest the meaning of a constitutional prohibition on a stack of advisory opinions is to rest it on a foundation that any later interpreter may decline to honor, and that no plaintiff may invoke to compel an officer’s compliance. The soft law construes the clause without ever hardening it.
The auditor’s line of opinion
A second and thinner body of interpretation comes from the Comptroller General of the United States, the head of the legislative branch’s audit arm, who historically issued opinions on the legality of federal expenditures and benefits. The Comptroller General’s emoluments opinions cluster around the same recurring problem of retired uniformed service members receiving compensation from foreign governments, and they helped establish the working understanding that the Foreign Emoluments Clause reaches retired officers, who remain subject to recall and are treated as holding an office of profit or trust, so that they must obtain congressional consent before accepting foreign-government employment or pay.[^6] Congress eventually supplied a standing, conditional consent mechanism by statute for certain such cases, which is itself an illustration of the consent valve discussed in the prior paper functioning as designed in the one domain where the political will to administer it existed.
The Comptroller General’s opinions, like OLC’s, are administrative rather than judicial. They guided disbursing officers and agencies; they did not construe the Constitution with the force of a holding. The point of cataloguing both bodies is not to disparage them. It is to establish that the entire interpretive apparatus of the emoluments clauses, before the Trump-era litigation, consisted of advisory pronouncements by the political branches about their own officers, supplemented by administrative regulation implementing them. There was no decision of any court that an officer or a President could be made to obey.
The litigating position and the first merits decisions
That changed, briefly, after 2017, when three sets of plaintiffs brought the emoluments clauses before federal courts for the first time in the nation’s history. One suit was filed by an ethics organization together with hospitality-industry competitors who alleged they lost business to a President’s hotels patronized by foreign and domestic governments; one by members of Congress; and one by the State of Maryland and the District of Columbia.[^7] The cases forced the executive, for the first time, to defend a construction of the clauses in an adversarial forum rather than to advise itself, and the construction it advanced is instructive precisely because it was the narrowest reading the text could bear.
The government’s litigating position, foreshadowed by a white paper prepared by the President’s private counsel, was that an emolument means compensation for services rendered in an official or employment capacity, and that arm’s-length commercial transactions at fair market value, a hotel room booked and paid for, a property leased, a round of golf purchased, are not emoluments at all because they are not payment for official services. On this view the clauses leave a President free to own a global business that transacts with foreign states, so long as the transactions are ordinary commerce. The position is the mirror image of the anti-dependence theory: where the broad reading bars the receipt because of the dependence it may create regardless of form, the narrow reading asks only whether the payment was for official services, and answers that commerce is not.
The district court in Maryland rejected that reading. In denying the President’s motion to dismiss, it held that “emolument” is a broad term embracing any profit, gain, or advantage, including profit from ordinary market transactions, the first time any court had construed the word in American history.[^8] The decision aligned the judicial reading with the founding-era dictionary evidence and against the government’s official-services construction. Had it been affirmed and made final, it would have hardened the broad reading into binding law. It was not.
Resolution by non-resolution
What happened to the three cases is the part of the story most directly relevant to this series, because the manner of their ending is a clean demonstration of how the merits of the emoluments clauses keep failing to be decided even when courts are willing to decide them.
The congressional suit foundered on standing. The District of Columbia Circuit held that individual members of Congress lacked standing to sue the President under the Foreign Emoluments Clause, because they could not assert the institutional interests of the legislature as a whole, and the Supreme Court denied review, leaving that standing holding intact and the suit terminated without any ruling on what the clause means.[^9] The competitor and state suits fared better at the threshold, with the appellate courts recognizing competitor and state standing and allowing the cases toward the merits, over significant dissent.[^10] But before either reached a final judgment on the meaning of the clauses, the President’s term ended. The acting Solicitor General urged the Supreme Court to wait for the inauguration and then vacate the lower-court rulings with instructions to dismiss as moot, a procedure known as Munsingwear vacatur, under which a judgment that becomes moot through no fault of the losing party is wiped out so that it will not stand as precedent.[^11] On January 25, 2021, the Court did exactly that, dismissing the two surviving cases as moot and ordering the favorable lower-court opinions vacated.[^12]
The result is that the one judicial construction of “emolument” in the nation’s history, the Maryland district court’s broad reading, was erased, and the appellate opinions recognizing standing were largely vacated as well. What survives as precedent is narrow and procedural: the holding that individual legislators lack standing remains good law, while the merits questions, the meaning of the term, the reach of the clauses, the President’s coverage, return to the unsettled condition they occupied before 2017. Four years of litigation produced no authoritative answer to the question the litigation was brought to answer. The clauses were argued before courts for the first time, and the courts, through the mootness doctrine and the vacatur that follows it, contrived to leave them where they had always been.
It is worth naming the structural feature this episode reveals, while reserving its full treatment for the next paper. A prohibition aimed chiefly at a President’s conduct in office is, by its nature, vulnerable to mootness, because the office is held for a fixed and limited term. If the litigation cannot be completed within the term, the defendant’s departure moots the case, and Munsingwear vacatur then ensures that even the interim victories vanish. The very temporariness of the office that makes the prohibition urgent is what allows the officeholder to outlast the litigation and take any adverse rulings down with him. The merits are not rejected; they are run out the clock.
Scholarship as a stand-in for doctrine
Where binding doctrine is absent, scholarship rushes to fill the vacancy, and the emoluments literature has the character of a debate conducted in the space a court would ordinarily occupy. The broad, anti-dependence reading has been developed by Zephyr Teachout’s work on the framers’ conception of corruption, by the historical-meaning research of John Mikhail on the founding-era definition of the term, and by the legal analysis of Norman Eisen, Richard Painter, and Laurence Tribe applying the clause to a sitting President.[^13] The narrow reading, and the argument that the President is not even among the officers the Foreign Emoluments Clause reaches, has been pressed most persistently by Seth Barrett Tillman, whose work on the founding-era usage of “office under the United States” and on the treatment of business transactions supplied the intellectual scaffolding for the government’s litigating position.[^14] The dispute is real and the narrow case is not frivolous; a fair account must grant that the President-coverage question turns on contested historical usage and that the Constitution’s parallel office-related phrases do not all plainly include elected officials.
But the point for this series is not to adjudicate the scholarly contest. It is to notice that the contest exists in lieu of an answer. In a domain governed by settled doctrine, the academic literature comments on the law; in a domain without doctrine, the literature becomes the nearest thing to law, and the meaning of a constitutional prohibition is, in practice, whatever the most persuasive brief can make it for the duration of a particular dispute. That is a precarious foundation for a categorical command. It means the prohibition’s scope is relitigated from the ground up each time it is invoked, with no accumulated holding to anchor it, and that the side with the resources to mount the more elaborate historical argument enjoys an advantage the text alone never conferred.
Soft law as the mechanism of negotiability
Drawing the threads together yields the paper’s contribution to the larger argument. The interpretation of the emoluments clauses lives almost entirely in soft law: advisory opinions of the executive about itself, opinions of the legislative auditor about its own branch’s officers, administrative regulations implementing those opinions, a single now-vacated judicial construction, and a scholarly debate that substitutes for the missing doctrine. Each of these instruments shares a disqualifying limitation when measured against the function a binding holding would serve. The executive opinions are written by the restrained party. The auditor’s opinions are administrative and confined to expenditures. The regulations implement the opinions and inherit their status. The one judicial construction was erased by the mootness machinery before it could bind. And the scholarship, however learned, commands no one.
The consequence is that the meaning of the prohibition is not fixed but perpetually open, and that the actors with the practical power to settle it, the executive interpreting its own duties, the Congress declining to administer the consent valve against its own, the courts declining the merits, are precisely the actors least motivated to settle it against the officeholders the clause restrains. A hard rule whose meaning is determined, when determined at all, by its own subjects, and whose only judicial construction can be deleted by the subject’s departure from office, is a hard rule in form and a negotiable standard in operation. This is the precise sense in which the series claims that the emoluments regime exhibits a wide gap between stated rule and operational norm. The stated rule is the categorical text of Paper 2. The operational norm is what the soft-law apparatus, and the failure of the hard-law apparatus, have left standing: a prohibition that officers may construe in their own favor, that no outsider can readily enforce, and that no court has been permitted to pin down.
Why the courts have not pinned it down, the standing barriers, the justiciability objections, the absence of a private right of action, and the mootness escape that closed the Trump-era cases, is the subject of the next paper. There the inquiry turns from what the law of emoluments is to why the machinery that would give the law force has so reliably failed to engage. The present paper establishes the antecedent point: that the failure of enforcement is not merely a failure to punish violations but a failure, prior to punishment, even to fix what the prohibition means, so that the rule arrives at the question of enforcement already softened, its content unsettled, its construction in the hands of those it was written to bind.
Notes
[^1]: Proposal That the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278 (1963). The opinion canvassed the options by which President Kennedy might receive the honor consistent with the Foreign Emoluments Clause; its significance for present purposes is its treatment of the President as an officer to whom the clause’s concerns apply.
[^2]: President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187 (1981). OLC treated the vested state pension as a sui generis legal entitlement, earned before the presidency and irrevocable by the state, and so neither a gift nor compensation for present service within the Domestic Emoluments Clause.
[^3]: Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1 (2009). The opinion turned on the “foreign State” element, concluding that the awarding committee acts independently of the Norwegian government and that the prize was therefore not received from a foreign state. A companion line of opinion addressing awards from sub-national and municipal bodies appears in OLC’s later work.
[^4]: The 1986 opinion concerning federal scientists and the University of New South Wales resolved the matter on the source question, holding that a consulting fee from a foreign government would ordinarily be an emolument but that the university acted independently of the foreign state. The opinion is significant for conceding the breadth of “emolument” while narrowing on source.
[^5]: OLC’s “conduit” reasoning treats a proportionate share of partnership or limited-liability-company distributions attributable to the entity’s foreign-government clients as an emolument to the federal officer, even absent direct service to the foreign client. The Department of Defense’s financial-management regulations implement this understanding for retired service members.
[^6]: In re Retired Uniformed Service Members Receiving Compensation from Foreign Governments, 58 Comp. Gen. 487 (1979). The Comptroller General’s opinions established the working view that retired officers, subject to recall, hold an office of profit or trust and require congressional consent for foreign-government employment. Congress later enacted a statutory framework granting conditional advance consent for certain such cases, an instance of the consent mechanism operating where political will existed to administer it.
[^7]: The three suits were CREW v. Trump (S.D.N.Y.), Blumenthal v. Trump (D.D.C.), and District of Columbia v. Trump (D. Md.). Each presented questions of first impression; in more than two centuries no court had construed either emoluments clause on the merits.
[^8]: District of Columbia v. Trump, 291 F. Supp. 3d 725 (D. Md. 2018). The court read “emolument” broadly as any profit, gain, or advantage, including profit from ordinary commercial transactions, the first judicial construction of the term in American history. The opinion was later vacated as moot.
[^9]: Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020), holding that individual members of Congress lacked standing because they could not assert the institutional interests of the legislature; cert. denied, 141 S. Ct. 553 (2020). This standing holding, unlike the merits questions, remains good law because it was not vacated.
[^10]: CREW v. Trump, 953 F.3d 178 (2d Cir. 2020) (recognizing competitor standing), reh’g en banc denied, 971 F.3d 102 (2d Cir. 2020) (with noted dissents); and the Fourth Circuit’s en banc treatment reviving the Maryland and District of Columbia suit. The standing analysis is treated at length in Paper 4.
[^11]: The Munsingwear doctrine, from United States v. Munsingwear, Inc., 340 U.S. 36 (1950), directs that a federal civil judgment which becomes moot on its way to review through no fault of the losing party should be vacated, so that it will not spawn legal consequences or stand as precedent. The acting Solicitor General expressly sought this disposition.
[^12]: Trump v. District of Columbia, 141 S. Ct. 1262 (2021) (mem.), and the companion disposition in the CREW matter, dismissing the cases as moot upon the end of the President’s term and ordering the lower-court judgments vacated. The order carried no noted dissents.
[^13]: Teachout (2014); Mikhail (2017); Eisen, Painter, & Tribe (2016). Together these supply the principal modern statements of the broad, anti-dependence reading.
[^14]: Tillman (2017) and related work argue both that ordinary business transactions do not yield constitutional emoluments and that the elected President does not hold an “Office of Profit or Trust under” the United States within the Foreign Emoluments Clause. The argument supplied intellectual support for the government’s litigating position and was advanced before the courts by amicus filing.
References
Congressional Research Service. (2019). The emoluments clauses and the presidency: Background and recent developments (Report No. R45992). https://www.everycrsreport.com/reports/R45992.html
CREW v. Trump, 953 F.3d 178 (2d Cir. 2020).
CREW v. Trump, 971 F.3d 102 (2d Cir. 2020) (denial of rehearing en banc).
Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020), cert. denied, 141 S. Ct. 553 (2020).
District of Columbia v. Trump, 291 F. Supp. 3d 725 (D. Md. 2018), vacated as moot.
Eisen, N. L., Painter, R., & Tribe, L. H. (2016, December 16). The emoluments clause: Its text, meaning, and application to Donald J. Trump (Governance Studies). Brookings Institution. https://www.brookings.edu/research/the-emoluments-clause-its-text-meaning-and-application-to-donald-j-trump/
In re Retired Uniformed Service Members Receiving Compensation from Foreign Governments, 58 Comp. Gen. 487 (1979).
Mikhail, J. (2017). The definition of “emolument” in English language and legal dictionaries, 1523–1806 (Working paper). Social Science Research Network. https://ssrn.com/abstract=2995693
President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187 (1981).
Proposal That the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278 (1963).
Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1 (2009).
Teachout, Z. (2014). Corruption in America: From Benjamin Franklin’s snuff box to Citizens United. Harvard University Press.
Tillman, S. B. (2017). Business transactions and President Trump’s “emoluments” problem. Harvard Journal of Law & Public Policy, 40(3), 759–771.
Trump v. District of Columbia, 141 S. Ct. 1262 (2021).
United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
U.S. Const. art. I, § 9, cl. 8.
U.S. Const. art. II, § 1, cl. 7.
