Many disputes involving the Constitution’s odd clauses never make it to any court. Oftentimes, there is nobody who either could serve as a plaintiff to challenge the government’s actions under one of the clauses or would want to. But that doesn’t mean that the government itself doesn’t think about the clauses or consider issues that arise under them. It does. In the executive branch, the office that does much of this work is called the Office of Legal Counsel in the Justice Department. It’s a small office that issues opinions and advice on complicated constitutional and statutory issues that affect the executive branch. Many legal bigwigs have served as leaders in the office, including the late Chief Justice Renhquist and Justice Scalia, both of whom led the office before being put on the bench, and Justice Alito, who was a deputy in the office before being appointed to the Third Circuit Court of Appeals. I worked at OLC for about two years as an attorney-advisor between 1999 and 2001, mostly in the Clinton Administration but also for a bit during the beginning of the Bush Administration. The idea for writing the Odd Clauses book came to me during this stint. If you’ve heard of OLC before, it may have been because it’s the office that (long, long after I left) issued the infamous “torture memo.”
So, the webpage that lists and links to OLC’s written opinions is a rich source of information for the odd clauses. I came across an interesting opinion there yesterday about the Foreign Emoluments Clause, an odd clause located at Article I, Section 9, Clause 8 of the Constitution that makes it unconstitutional for anyone “holding any Office of Profit or Trust” under the United States from accepting, without Congressional consent, “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The idea was to limit foreign influence over U.S. officials.
The question that gave rise to the OLC opinion was whether a NOAA scientist (unamed by the opinion) could accept the 2010 Goteborg Award (there’s an umlaut in there somewhere but I can’t figure out how to make one) for Sustainable Development, an award that comes with some significant Swedish cash. OLC, in a memorandum written by Dan Koffsky, a long-time member of OLC who is one of the most brilliant but also one of the kindest and most generous lawyers I’ve ever met, decided that the scientist could accept the award despite the Foreign Emoluments Clause because even though some of the money came from the city government and even though a government board retains ultimate theoretical control over who gets the awards, in fact the awards are given out by a jury of private individuals. The opinion concludes: “Although the question is close, we believe the Goteborg Award Association, acting through the jury, is not an instrumentality of a foreign state for purposes of the Emoluments Clause.” It’s a great little opinion, well-reasoned and interesting. The link is here.