Is the restriction on receiving a "present" in the Emoluments Clause applicable?

Question

The Emolument Clause:

No Title of Nobility shall be granted by the United States: And 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.

The part about receiving a title from a King, Prince... is clear enough; the question is about the receiving a "present".

Is a "present" a "thing of value" not paid for at fair value?

Is a thing of value a well defined legal concept when dealing with immaterial goods and ideas?

What is fair value? Can immaterial goods ever have a defined, measurable fair value?

Is an honor a "gift"? Can a US President receive the honor (not money) of a Nobel prize?

Answer 1

§III of the complaint Blumenthal et al. v. Trump especially para 23- provide useful historical background on the Emoluments Clauses, in connection with preventing corruption, especially the practice of monarchs giving "the usual presents" to diplomats and ministers. This resulted in provisions both in the Articles of Confederation and in The Constitution prohibiting acceptance of "any present, Emolument, Office, or Title". Plaintiffs argue that

the word “emolument” was defined broadly in the eighteenth century to mean “profit,” “advantage,” “benefit,” and “comfort.”

Para 24 present a series of examples of "things given" which were found to be within the purview of the Emoluments Clauses, which includes employment, payment for work, also an honorary military insignia, a photograph, as well as a piece of paper conferring honorary Irish citizenship on President Kennedy. In the latter case, the question is whether he could receive the piece of paper – the conclusion was that he could receive it and then deposit it with the Dept. of State pending Congressional approval (actual citizenship was not conferred, only an honor was conferred, but also a piece of paper was given, which brought the matter within the scope of the Foreign Emoluments Clause. The House of Representatives took up a specific matter on May 4, 1789 (p. 1581), with ample mention of "presents" (no mention of "emoluments"), receipt of which is prohibited without congressional approval. In the context of that debate, during the 5th Congress, it is clear that "present" means "something that is presented" and not "something of significant value".

Since the three relevant lawsuits never reached the stage of evaluating the merits of the arguments, we can only guess how SCOTUS would interpret the word "present", but it is most likely that at least the present court would adhere to a more historical understanding of the term as "something presented", cash value being irrelevant.

It is also most probable that a person holding such an office would be legally allowed to say "Thank you" in response to the King of Norway declaring "Wonder speech, Mr. Secretary", even though doing so is acceptance of an honor.

Answer 2

The drafters of the US Constitution probably mean a present of money, or of valuable items that could be converted to money, such as jewels, artwork, or the like. That does no mean that the clause's meaning is limited to those categories, however.

The Emolument Clause has rarely if ever been enforced, and as far as I know no clear definition of the meaning of "present" in the clause has been established in case law. Thus then "ordinary meaning" of the word would apply.

Honors or recognitions that carry neither legal rights or benefits, nor associated monetary payments, and are not "titles of nobility" are probably not "presents" for purposes of this clause. But one cannot be sure until some official receives such a "gift"., and the act is challenged in court under this clause, and a federal court rules on the matter.

Sources

Note that the Constitution is a statute, and rules of statutory interpretation apply.

Ordinary Meaning

• US Legal states that:

Ordinary meaning rule is a principle of statutory interpretation that when a word is not defined in a statute or other legal instrument, the court normally construes it in accordance with its ordinary or natural meaning. This rule guides courts faced with litigation that turns on the meaning of a term not defined by the statute, or on that of a word found within a definition itself.

According to this rule, statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise.

• The Wikipedia article "Plain meaning rule" states:

The plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts. > ...

The plain meaning rule dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd. Ordinary words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable.

• in Perrin v. United States, 444 U.S. 37 (1979) the US Supreme Court wrote:

A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Burns v. Alcala, 420 U. S. 575, 420 U. S. 580-581 (1975). Therefore, we look to the ordinary meaning of the term "bribery" at the time Congress enacted the statute in 1961.

• The CRS Report "Statutory Interpretation: General Principles and Recent Trends" states:

in considering the meaning of particular words and phrases, language canons call for determining the sense in which terms are being used, that is, whether words or phrases are meant as terms of art with specialized meanings or are meant in the ordinary, “dictionary” sense. Other language canons direct that all words of a statute be given effect if possible, that a term used more than once in a statute ordinarily be given the same meaning throughout, and that specific statutory language ordinarily trumps conflicting general language. “Ordinarily” is a necessary caveat, since any of these “canons” may give way if context points toward a contrary meaning.

• "Statutory Meaning vs Ordinary Meaning" from Clayton Utz states:

In order correctly to interpret legislation the words of the text have to be understood in context. It is often said that the words of a provision are to be given their ordinary or "natural" meaning.

• A GUIDE TO READING, INTERPRETING AND APPLYING STATUTES from Georgetown University Law school reads:

Courts generally assume that the words of a statute mean what an “ordinary” or “reasonable” person would understand them to mean.6 Moreover, some courts adhere to the principle that if the words of a statute are clear and unambiguous, the court need not inquire any further into the meaning of the statute. Thus, you can often begin by looking at the ordinary or reasonable understanding of a statute’s text based on your own experience and understanding of language and grammar.

• STATUTORY INTERPRETATION FROM THE OUTSIDE by Kevin Tobia, Brian G. Slocum & Victoria Nourse from the Columbia Law Review.

“Ordinary meaning” plays a crucial role in in­terpreting most legal texts: from contracts and wills, to treaties and the U.S. Constitution. See, e.g., Cal. Civ. Code § 1644 (2018) (“The words of a contract are to be understood in their ordinary and popular sense . . . .”); Cal. Prob. Code § 21122 (2018) (“The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained.”); Curtis J. Mahoney, Note, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116 Yale L.J. 824, 829–32 (2007) (describing the Supreme Court’s recent approach to treaty interpretation, which often focuses on the plain meaning of terms in a treaty); Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (Apr. 3, 2019), https://ssrn.com/abstract=2940215 [https://perma.cc/P7JR-9RDM] (unpublished manuscript) (“The dominant strain of contemporary originalism emphasizes the public meaning of the constitutional text . . . .”).

Normatively, the doctrine often finds justification for “ordinary” language principles based on notice, predictability, and the no­tion that the public should be able to read, understand, and rely upon legal texts.

Increasingly, the Supreme Court has emphasized that the interpretive process begins by giving statutory language its ordinary meaning.

See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020) (“This court normally interprets a statute in accord with the ordinary public meaning of its terms . . . .”); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (“In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself.”).

For some, interpretation begins and ends with ordinary meaning. Modern tex­tualists believe that ordinary meaning should significantly constrain inter­pretation; other considerations enter only if ordinary meaning is indeter­minate.

See, e.g., Victoria Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia, 70 Ala. L. Rev. 667, 669 (2019) (acknowledging but questioning the premise that ordinary meaning constrains as between results in a case).

Purposivists agree that ordinary meaning is at least relevant to interpretation, See, e.g., Eskridge, Interpreting Law, supra note 3, at 35 (“There are excellent reasons for the primacy of the ordinary meaning rule.”). alongside other criteria including legislative intent (typi­cally ascertained via legislative history).

See Robert A. Katzmann, Judging Statutes 31–35 (2014) (explaining the purposivist approach to statutory interpretation).

Few deny that ordinary meaning is regularly deployed by all members of the current Supreme Court. As Justice Elena Kagan famously declared of the Court, “We’re all textualists now.” Harvard Law School, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes, YouTube, at 08:29 (Nov. 25, 2015), https://youtu.be/dpEtszFT0Tg (on file with the Columbia Law Review). This statement depends upon an essential ambiguity: whether one begins or ends with the text.

Con­sider the Court’s recent landmark decision in Bostock v. Clayton County. 11 140 S. Ct. 1731. The Justices divided sharply, but all the opinions—both the majority and two dissents—invoked “ordinary meaning” in determining whether the term “sex” in Title VII’s antidiscrimination provision includes sexual orientation and transgender discrimination.