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Without a doubt, an "emolument"

October 13, 2009

The Emoluments clause, U.S. Constitution Article I, Section 9, Clause 8 (art. I, § 9, cl. 8), provides:

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.

In a memorandum finding that NASA employees could not take paid leave to work for a Canadian University that was chartered under Canadian law, the United States Department of Justice has defined “King, Prince or foreign State” to include foreign universities:

Foreign public universities are, presumptively, foreign States within the meaning of the Clause.

The language of the Emoluments Clause is both sweeping and unqualified. The Clause in terms prohibits those holding offices of profit or trust under the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever” from “any . . . foreign State” unless Congress consents (emphases added). There is no express or implied exception for emoluments received from foreign States when the latter act in some capacity other than the performance of their political, military or diplomatic functions. The decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause. ⁽¹⁰⁾

*** Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government, even when those benefits took the form of remuneration for academic work or research. Moreover, institutions of higher learning are often substantially funded, whether directly or indirectly, by their governments, and university research programs or other academic activities may be linked to the missions of their governmental sponsors, including national scientific and defense agencies.

Accordingly, we conclude that foreign governmental entities, including public universities, are presumptively instrumentalities of foreign States under the Emoluments Clause, even if they do not engage specifically in political, military or diplomatic functions.

There can be no doubt that the Nobel Prize Committee is an institution of the Norwegian government. The Nobel website states:

Since the first Nobel Prizes were awarded in 1901, the Peace Prize has, in accordance with Alfred Nobel’s will, been awarded by a committee of five, appointed by the Storting (the Norwegian Parliamant), but without the committee being formally responsible to the Storting. According to rules laid down by the Storting, election to the committee was to be for a six-year term, and members could be re-elected. The committee’s composition should reflect the relative strengths of the political parties in the Storting, but the committee has elected its own chairman and deputy chairman. It was never required by the rules and on some occasions the matter has been debated, but so far all committee members have been Norwegian nationals.

Given that the avowed purpose of the award is to empower the President to exercise his influence in support of the Nobel commission’s mission to allegedly foment world peace, and comes with a very substantial “emolument,” $1.4 Million USD, it should be no-brainer that this comes up in front of Congress. Mr. Reid, Madam Pelosi, front and center! Let’s get this done before we vote on health care, okay?

This issue has already been raised by an anonymous poster, so I cannot claim to be an original thinker. However, the question is rather obvious, and I am uncertain why Attorney General Eric Holder has failed to consider it. Except, perhaps, that reading the Constitution isn’t a big priority inside the Beltway.

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