What is the Emoluments Clause?

The U.S. Constitution contains two provisions commonly called the Emoluments Clauses. The Foreign Emoluments Clause, at Article I, Section 9, Clause 8, reads: '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 Presidential Emoluments Clause, at Article II, Section 1, Clause 7, reads: 'The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased 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 Foreign Emoluments Clause covers all federal officeholders -- executive, legislative, and judicial -- and permits receipt of foreign-government benefits only with prior congressional consent. The Presidential Emoluments Clause covers only the president and categorically bars payments from the U.S. government or any state beyond the fixed salary, with no consent mechanism.

The Framers included both clauses at the Constitutional Convention of 1787 in part because the European practice of giving lavish gifts to foreign diplomats was familiar to the founding generation. Benjamin Franklin, who served as U.S. Minister to France from 1778 to 1785, received a diamond-studded portrait miniature of King Louis XVI upon his departure from Paris. Franklin sought and received permission from the Continental Congress before accepting the gift -- a practice the Framers encoded in the Foreign Emoluments Clause. Alexander Hamilton explained the purpose of the Presidential Emoluments Clause in Federalist No. 73: fixing the president's salary and barring any additional emoluments from the federal government or the states was designed to make the executive 'truly independent' by removing any financial leverage Congress or the states might otherwise hold over the president. The word 'emolument' derives from the Latin 'emolumentum,' meaning gain or profit, and in 18th-century legal and political usage referred broadly to any advantage arising from an office or employment.

The central unresolved legal question under both clauses is the scope of the word 'emolument.' The Department of Justice Office of Legal Counsel (OLC) has issued conflicting guidance. A 1993 OLC opinion interpreted 'emolument' broadly to encompass any benefit or gain from a foreign government, including payments made at fair-market value in ordinary commercial transactions. A 2017 OLC opinion, issued at the outset of the Trump administration, offered a narrower reading: 'emolument' covers compensation for services rendered in an official capacity and does not extend to ordinary arm's-length commercial transactions conducted at market rates. The broader interpretation draws on the anti-corruption purpose of the clause and founding-era practice treating even commercial gifts as emoluments requiring congressional consent. The narrower interpretation draws on Samuel Johnson's 1755 dictionary, which associated 'emolument' with the profit arising from office or employment, and on historical practice showing that early Congresses consented to specific foreign gifts without treating routine trade as an emolument. No court has adopted either interpretation in a final ruling on the merits.

The emoluments clauses attracted little litigation until 2017. After President Trump took office retaining ownership of businesses that received payments from foreign government officials -- including foreign dignitaries staying at Trump-branded hotels -- multiple plaintiffs filed suit alleging violations. Citizens for Responsibility and Ethics in Washington (CREW) filed in the Southern District of New York; the attorneys general of Maryland and the District of Columbia filed in the District of Maryland; and members of Congress including Senator Richard Blumenthal filed in the District of Columbia. None of these cases produced a ruling on the merits. The D.C. Circuit held in Blumenthal v. Trump (D.C. Cir. 2020) that individual members of Congress lacked standing to challenge alleged Foreign Emoluments Clause violations, because the claimed injury -- denial of a congressional vote on consent -- was a widely shared legislative harm for which the Constitution provided a political remedy (a floor vote) rather than a judicial one. After Trump left office in January 2021, the Supreme Court vacated the remaining emoluments cases as moot and remanded for dismissal, leaving no court-approved definition of what conduct the clauses prohibit.

The emoluments clauses are expected to remain a live issue in the 2028 election cycle. Any presidential candidate who retains private business interests that receive payments from foreign governments, federal agencies, or state entities will face emoluments scrutiny if elected. Debate continues about: what exactly counts as a prohibited emolument (the OLC's 1993 and 2017 opinions conflict and neither has judicial endorsement); who has legal standing to enforce the clauses (courts have consistently denied standing to competitors, legislators, and advocacy organizations); and whether a prospective congressional authorization statute could define permissible categories of foreign emoluments in advance. Because no court has issued a merits ruling, the clauses' substantive scope will be determined through political accountability, congressional oversight, and eventual litigation in any future case where a court finds a plaintiff with a sufficiently concrete injury to establish Article III standing.