Outside Publication

The Non-Justiciable Emoluments Clause, Journal of Law & Politics, Vol. 34


Scholarly conversations about the meaning of the Foreign Emoluments Clause have recently become more prevalent. Benjamin writes that the Foreign Emoluments Clause is a nonjusticiable part of the Constitution which only Congress can, and was meant to, enforce. Under this theory, the Emoluments Clause creates a constitutional obligation for those bound by it to report to Congress any “present, Emolument, Office, or Title, of any kind, whatever,” that they receive from a foreign government. After this reporting obligation is complete, however, Congress, and only Congress, has discretion to determine if a constitutional violation has occurred and what may be done about it.

Part I of this Article argues that this view is consistent with history and an originalist interpretation of the Constitution. Part II demonstrates that the Clause itself is nonjusticiable due to Article III’s political question doctrine. Part III contends that this view is the most workable interpretation of the Emoluments Clause and also avoids the difficult problem of defining the outer limits as to whom the Clause applies.

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