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Pasco County News | Breaking News

What’s an ‘emolument,’ anyway?

Posted Nov 2, 2009 by Tom Jackson

Updated Nov 2, 2009 at 11:18 PM

It is a source of fascination and amusement that many of the same folks who embrace the notion of a “living, breathing, evolving” U.S. Constitution, and who are quite on board with unelected judges discovering “penumbras” that support their ideas of social justice can at the same time be dismissive when confronted with the plain language of the document if it inconveniences their particular point of view.

Consider the backlash that met the observation of some old original-intent fuddy-duddies – among them Rep. Ginny Brown-Waite (R-Brooksville) – that President Obama must clear a constitutional hurdle before he can accept the Nobel Peace Prize he “won” last month.

The plain language of the Constitution is found within Article 1, Section 9, which gives Congress specific instructions regarding one facet of its relationship with the rest of the federal government. Known as the “emoluments clause,” it provides thusly: “No person holding any office of profit or trust under them, 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.”

Let us stipulate that the details leave constitutional scholars oddly conflicted about the correct course of action. The committee that awards the Nobel Peace prize is appointed by the Norwegian legislature, but is officially independent from it. On the other hand, the prize is awarded in the presence of – and, some authorities say, on behalf of – the Norwegian king. That sounds at least like the makings of two constitutional difficulties.

Not that all murkiness has been set aside. However, over at the Volokh Conspiracy, researcher David Kopel, digging into Brown-Waite’s objection (joined by Florida’s Cliff Stearns and Texas’ Ron Paul), has unearthed this statutory clarification:

When [Theodore] Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC § 7342 (titled “Receipt and disposition of foreign gifts and decorations”) sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an “employee,” which includes “the President and the Vice President.”

A “foreign government” includes “any agent or representative of any such [foreign] unit or such organization, while acting as such.” Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A “gift” is “a tangible or intangible present (other than a decoration).” A “decoration” includes a “medal, badge, insignia, emblem, or award.”

By the statute, Congress explicitly consents to employee receipt of gifts of “minimal value,” which is “means a retail value in the United States at the time of acceptance of $100 or less.” The statute authorizes the Administrator of General Services to make regulations to adjust “minimal value” to reflect changes in the Consumer Price Index, beginning in 1981, and reflecting CPI changes in the previous three years. Roughly speaking, $100 in 1978 is about $327 today.

A Peace Prize laureate receives a diploma, a 196-gram gold medal, and a large check (10 million Swedish crowns in 2007). The spot price of gold is $33 a gram, so the medal and the check obviously do not qualify for the “minimal value” exception. The diploma, as a piece of paper, could, although not if it were delivered with an expensive frame.

In the statute, Congress also formally “consents” to an employee receiving and keeping “a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.” The diploma and the medal both fit within the definition of “decoration.” As President, Obama is the head of his own “employing agency,” and therefore can approve his receipt of the medal and the diploma.

The check is not a “decoration” and is of much more than “minimal value.” Employees may not accept gifts of more than minimal value. However, there are various exceptions, and the relevant one is that a gift may be accepted “when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that– (i) a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.”

It would seem to be within the foreign policy discretion of President Obama to determine that refusing the Nobel check could cause offense, embarrassment, or an adverse effect on foreign relations.

Or not. Depending upon the oratorical skills of the public official declining the offer.

Anyway, back to the earlier complaint, that Brown-Waite, Stearns and Paul have cited an “obscure” portion of the Constitution. As if claiming obscurity is an argument. If it is, then let us do away with the infield fly rule, which eight of 10 fans at any Tampa Bay Rays game can’t accurately explain. But don’t come crying to me when routine popups with no outs and the bases loaded turn into triple plays.

But that’s the way it works these days. Don’t like a rule, claim it’s obscure, or archaic, or the Founders couldn’t possibly have anticipated the nuanced 21st Century – and besides, they weren’t divinely inspired anyway or what’s up with that three-fifths of a person clause, hmmmm? Do anything but concede that the Constitution says what it says – How ’bout that obscure, archaic 10th Amendment? – and that for the sake of sacred consistency, we should be loathe to stray from its plain, obvious words. We appreciate Brown-Waite’s efforts on sticking up for all the document’s words and phrases.

Now, our concession to murkiness above notwithstanding, it takes an alarming amount of wriggling to escape the obvious hook: that by dint of its composition, the awards committee is inextricably linked to Norway’s legislature.

In calls even less apparent than this one, it would be incumbent upon the recipient to affirm, graciously, both the spirit and the letter of the Constitution, by formally seeking the Congress’ approval.

Of course, it’s easy to see the problem with that: Days, if not weeks, of floor debate in both houses over President Obama’s fitness for the prize – nominations for which closed 10 days after he was inaugurated – and what motivated the committee to violate the clear language of Alfred Nobel’s bequest, that the prize must be awarded for work done “during the preceding year.”

But Nobel was a man of the 19th Century, witlessly burdened by the obscure, archaic notions of achievement who could not possibly have anticipated the awesomeness of Barack Obama and besides, even Nobel’s closest friends don’t say he was divinely inspired and, well, oh, never mind.

Before we conclude, however, we must note at least one fallacy in Brown-Waite’s thinking. She suggests that President Obama would receive something of value even if he donates the prize money – about $1.4 million – to charity: about a $500,000 tax deduction. If only the IRS code were so simple. In fact, the deduction would come only after he had declared the $1.4 million as ordinary income, leaving him a $900,000 hit on which to pony up.

Luckily, he has noted tax avoidance expert Tim Geithner next door at Treasury. Or perhaps the next, newest convert to the consumption-based Fair Tax is already sitting in the Oval Office. So it’s all good.