More Thoughts About OLC’s Foreign Emoluments Clause Opinion

The other day I discussed a recent (October 2010, which is not really recent, but with these odd clauses, it’s not like opinions are coming off the press on a daily basis or anything) opinion/memorandum from the Office of Legal Counsel on the Foreign Emoluments Clause.  The office said that a NOAA scientist could accept an award from Sweden for sustainable development because the jury that decided who gets the award is made up of private citizens, rather than government officials.  I thought I’d say a few more words about the opinion because it does lay out the issues involved with this clause in a really nice way.

For one thing, on the issue of whether an award really is coming from a foreign government (the clause only prohibits government officers from receiving presents or money from “any King, Prince, or foreign State”), the memo says that several factors should be considered: (1) whether the foreign government has an active role in the management of the decisionmaking entity; (2) whether a foreign government, as opposed to a private intermediary, makes the ultimate decision regarding the gift or emolument; and (3) whether a foreign government is a substantial source of funding for the entity.  The memo says that no one factor is dispositive and then, citing a memoradnum written by Sam Alito to NASA, points out that the key is whether, looking at the three factors together, the arrangement would raise the corruption and foreign influence concerns that motivated the framers to include the clause in the first place.

A couple of other interesting points.  For one thing, is this NOAA scientist even covered by the clause in the first place?  Only those who hold an “Office of Profit or Trust” under the United States are forbidden from accepting a gift or money from the foreign state.  The issue of who counts as a constitutional “officer” for a variety of provisions, odd and not odd, has come up a good deal, and at least in the Appointments Clause context, only those employees who exercise “significant government authority” count as officers.  My first instinct would be that a NOAA scientist would not fit this standard as it has been understood by courts and commentators.  But the OLC memo doesn’t address this question, pointing out in a footnote that it will not consider it given the office’s conclusion that the award is not actually from a foreign state.

One other issue that’s discussed in a footnote is whether the term “foreign state” includes only national governments or also state, provincial, local, and other levels of government.  On this question the memo says “we need not resolve that issue definitively here.”  Instead, the opinion assumes that the term does include smaller units of government, and it cites a memo to the file from my friend and former colleague Rosemary “Ruby” Nidiry, who, in the matter of “Honorary Village Chief from a Nigerian Village,” concluded that “just as ‘King’ and ‘Prince’ should be read to cover a foreign ‘Queen’ or ‘Princess’ or ‘Duke,’ ‘foreign State’ did not mean merely the ‘national government of that foreign State,’ but also should include any political governing entity within that foreign state.”

But then again, should we be as concerned about foreign influence from a city or town as we might be about influence from an actual nation state?  Hard question, it seems to me.

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Filed under Foreign Emoluments Clause, Office of Legal Counsel

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