4 ms·

Sure, but the courts enforce the constitution, not congress.

by sfeng 10y ago

azernik 10y ago
The issue isn't who enforces the constitution; it's what the constitution says. Congress has the power to decide which emoluments are okay. Assuming parent comment's interpretation of the law is correct (which it may not be), Congress has given blanket permission, in the same way that it has historically signed away large parts of its Constitutional war-making powers to the executive.
- int_19h 10y ago
  Congress hasn't given blanket permission. The law says that it's illegal for certain government officials to accept gifts etc. It doesn't say anything about whether it's legal for the president to accept them; it merely says that the president is not within the scope of that particular law.
  - kazagistar 10y ago
    You don't have to have a law for something to be legal. All actions are legal unless stated otherwise.
    - benchaney 10y ago
      Yes, and the constitution states otherwise.
    - int_19h 10y ago
      In the absence of any law, yes, it would be legal. Constitution has a clause that prohibits it for any public official including the president (assuming for the moment that it is the meaning of the emoluments clause), unless Congress specifically authorizes it. Congress additionally passed a law - 18 U.S. Code § 202 and § 208 - that regulates conflicts of interest among government officials. Its domain intersects with the Emoluments Clause somewhat, but it is not an implementation of the Emoluments Clause. It says that certain actions by people other than the president are illegal. Insofar as it intersects with Emoluments Clause, it is at best redundant (although even then it defines clear penalties, so not really). But there's nothing in it authorizing the president to receive emoluments. § 202 does contain language excluding certain people from the categories of "government officer" and "government employee", which are the target of § 208; but this simply means that § 208, and prohibitions in it specifically, do not apply to those people. In other words, the law doesn't say anything about them. It most certainly doesn't contain any language explicitly authorizing emoluments. Here, see for yourself: https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/202 https://www.law.cornell.edu/uscode/text/18/202 If we look at other past cases where the Emoluments Clause had to be dealt with, Congress specifically authorized such things, with clear verbiage to that effect. For example, here's the Foreign Gifts and Decorations Act: https://www.law.cornell.edu/uscode/text/5/7342 https://www.law.cornell.edu/uscode/text/5/7342 Note the language: "The Congress consents to ..." There's nothing even remotely similar in the law we are discussing. The only real question for the courts here is whether receiving payment for goods and services from a foreign government qualifies as emolument or not. The originalist interpretation is in favor of that - this is one of those clauses in the Constitution where the Founders wrote a great deal about why it was there, and it's clear that their concerns were broad rather than narrow (preventing "foreign corruption" of all kinds).
  - azernik 10y ago
    Well then. My assumption of parent comment's correctness was wrong :-)
  - dllthomas 10y ago
    There is an argument that the spelling out of cases in which it would be illegal implies that they're okay with it in other cases. See https://en.wikipedia.org/wiki/Exception_that_proves_the_rule#Original_meaning https://en.wikipedia.org/wiki/Exception_that_proves_the_rule...
emiliobumachar 10y ago
Courts interpret the constitution. I'm no lawyer, but "without the consent of the United States Congress" seems very clear-cut to me. It's up to congress, as per the constitution.

Sure, but the courts enforce the constitution, not congress.

by sfeng 10y ago

Sure, but the courts enforce the constitution, not congress.

The issue isn't who enforces the constitution; it's what the constitution says. Congress has the power to decide which emoluments are okay. Assuming parent comment's interpretation of the law is correct (which it may not be), Congress has given blanket permission, in the same way that it has historically signed away large parts of its Constitutional war-making powers to the executive.

int_19h 10y ago
Congress hasn't given blanket permission. The law says that it's illegal for certain government officials to accept gifts etc. It doesn't say anything about whether it's legal for the president to accept them; it merely says that the president is not within the scope of that particular law.
- kazagistar 10y ago
  You don't have to have a law for something to be legal. All actions are legal unless stated otherwise.
  - benchaney 10y ago
    Yes, and the constitution states otherwise.
  - int_19h 10y ago
    In the absence of any law, yes, it would be legal. Constitution has a clause that prohibits it for any public official including the president (assuming for the moment that it is the meaning of the emoluments clause), unless Congress specifically authorizes it. Congress additionally passed a law - 18 U.S. Code § 202 and § 208 - that regulates conflicts of interest among government officials. Its domain intersects with the Emoluments Clause somewhat, but it is not an implementation of the Emoluments Clause. It says that certain actions by people other than the president are illegal. Insofar as it intersects with Emoluments Clause, it is at best redundant (although even then it defines clear penalties, so not really). But there's nothing in it authorizing the president to receive emoluments. § 202 does contain language excluding certain people from the categories of "government officer" and "government employee", which are the target of § 208; but this simply means that § 208, and prohibitions in it specifically, do not apply to those people. In other words, the law doesn't say anything about them. It most certainly doesn't contain any language explicitly authorizing emoluments. Here, see for yourself: https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/202 https://www.law.cornell.edu/uscode/text/18/202 If we look at other past cases where the Emoluments Clause had to be dealt with, Congress specifically authorized such things, with clear verbiage to that effect. For example, here's the Foreign Gifts and Decorations Act: https://www.law.cornell.edu/uscode/text/5/7342 https://www.law.cornell.edu/uscode/text/5/7342 Note the language: "The Congress consents to ..." There's nothing even remotely similar in the law we are discussing. The only real question for the courts here is whether receiving payment for goods and services from a foreign government qualifies as emolument or not. The originalist interpretation is in favor of that - this is one of those clauses in the Constitution where the Founders wrote a great deal about why it was there, and it's clear that their concerns were broad rather than narrow (preventing "foreign corruption" of all kinds).
- azernik 10y ago
  Well then. My assumption of parent comment's correctness was wrong :-)
- dllthomas 10y ago
  There is an argument that the spelling out of cases in which it would be illegal implies that they're okay with it in other cases. See https://en.wikipedia.org/wiki/Exception_that_proves_the_rule#Original_meaning https://en.wikipedia.org/wiki/Exception_that_proves_the_rule...

emiliobumachar 10y ago

Courts interpret the constitution. I'm no lawyer, but "without the consent of the United States Congress" seems very clear-cut to me. It's up to congress, as per the constitution.