We Are Wendy

The Constitution contains several emolument clauses. The  Presidential version (art. II, § 1, cl. 7) states that: “The President shall, at stated Times, receive for his Services, a Compensation which shall neither be encreased (sic) nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

President Trump violated this clause often, made millions of dollars, and nothing will be done about it. In effect, one of the emoluments clauses in our Constitution is dead because one nutter ignored it.

The Constitution is not real in the sense that my pocket knife is real. The Constitution is real only when we believe in it-- in the sense that Tinker Bell is only real when we believe in her. 

We are Wendy.

The purpose of the Ineligibility Clause is to preserve the separation of powers and prevent executive influence on the legislature (and vice versa). The Clause thus prohibits federal officers from simultaneously serving as Members of Congress. Moreover, a Member of Congress may not hold an office if it was established during his tenure or if the emoluments of that office were increased during his tenure.

Officers Subject to the
Emoluments Clauses
In terms of the persons to whom they apply, the scope of the Domestic Emoluments Clause and the Ineligibility Clause is clear from the Constitution’s text: The Domestic Emoluments Clause applies to the President, and the Ineligibility Clause applies to Members of Congress.

The scope of the Foreign Emoluments Clause is less clear. By its terms, the Clause applies to any person holding an “Office of Profit or Trust under” the United States. The prevailing view of the Clause is that this language reaches only federal, and not state, officeholders. According to the Department of Justice’s Office of Legal Counsel (OLC), which has a developed body of opinions on the Foreign Emoluments Clause, offices “of profit” include those that receive a salary, while offices “of trust” are those that require discretion, experience, and skill.

There is disagreement, however, over whether elected federal officers, such as the President, are subject to the Foreign Emoluments Clause. Legal scholars have debated whether, as a matter of original public meaning, the Foreign Emoluments Clause reaches only appointed officers (and not elected officials). The OLC has generally presumed that the Foreign Emoluments Clause applies to the President, and the only district court to consider the issue (in District of Columbia v. Trump) came to the same conclusion.

The Meaning of the Term “Emolument”

Black’s Law Dictionary defines an “emolument” as an “advantage, profit, or gain received as a result of one’s employment or one’s holding of office.” There is significant debate as to precisely what constitutes an emolument within the meaning of the Foreign and Domestic Emoluments Clauses, particularly as to whether it includes private, arm’s-length market transactions. The only two district courts to decide this issue (in District of Columbia v. Trump and Blumenthal v. Trump) adopted a broad definition of “emolument” as reaching any benefit, gain, or advantage, including profits from private market transactions not arising from an office or employment, although higher courts have not weighed in on the issue.

Standing to Enforce an Alleged Violation of the Emoluments Clauses
Whether the Emoluments Clauses may be enforced through civil litigation is an open question. The doctrine of standing presents a significant limitation on the ability of public officials or private parties to seek judicial enforcement of

 The Foreign Emoluments Clause (art. I, § 9, cl. 8): “[N]o Person holding any Office of Profit or Trust under [the United States], 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.”

 The Domestic Emoluments Clause (a.k.a. the Presidential Emoluments Clause) (art. II, § 1, cl. 7): “The President shall, at stated Times, receive for his Services, a Compensation which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

 The Ineligibility Clause (art. I, § 6, cl. 2): “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Off

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