Obama’s Nobel Unconstitutional?
Ron Rotunda and Peter Pham argue in today’s WaPo that it would violate the Constitution for President Obama to accept the Nobel Peace Prize while in office.
Article I, Section 9, of the Constitution, the emolument clause, clearly stipulates: “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 award of the peace prize to a sitting president is not unprecedented. But Theodore Roosevelt and Woodrow Wilson received the honor for their past actions: Roosevelt’s efforts to end the Russo-Japanese War, and Wilson’s work in establishing the League of Nations. Obama’s award is different. It is intended to affect future action. As a member of the Nobel Committee explained, the prize should encourage Obama to meet his goal of nuclear disarmament. It raises important legal questions for the second time in less than 10 months — questions not discussed, much less adequately addressed anywhere else.
[…]
An opinion of the U.S. attorney general advised, in 1902, that “a simple remembrance,” even “if merely a photograph, falls under the inclusion of ‘any present of any kind whatever.’ ” President Clinton’s Office of Legal Counsel, in 1993, reaffirmed the 1902 opinion, and explained that the text of the clause does not limit “its application solely to foreign governments acting as sovereigns.” This opinion went on to say that the emolument clause applies even when the foreign government acts through instrumentalities. Thus the Nobel Prize is an emolument, and a foreign one to boot.
Adam Blickstein argues that this contention is absurd, noting that General H. Norman Schwarzkoft, Fed Chairman Alan Greenspan, and others have accepted knightships and other awards whilst holding offices of trust with no complaint. But that’s not much of a counter: Maybe nobody noticed before.
More to the point, though, he points to an old Newsmax article reporting Greenspan was in fact challenged on these grounds by Rep. Howard Phillips and wrote back with a note from the Fed’s chief attorney to wit:
Congress gave its consent to the acceptance of certain gifts and decorations in the Foreign Gifts and Decorations Act (originally enacted in 1966). The Act provides as follows:
The Congress consents to the accepting, retaining, and wearing by an employee of 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 Act defines “decoration” to include “an order, device, medal, badge, insignia, emblem or award.” The Department of Justice has ruled that an honorary knighthood is an “order” as permitted by the Foreign Gifts and Decorations Act.
Rotunda and Pham do not make their argument out of pique; they quite charitably say Congress should provide their consent. It turns out, they did so when Obama was five.
Besides which, the Nobel Committee is not a “King, Prince or foreign State.â€
I don’t know if it qualifies as “out of pique,” but I have some problem imputing perfectly good faith to someone who writes this column without any knowledge of a 40 year old act of Congress setting the standard therein. Either Rotunda and Pham didn’t do even a minimum amount of research, or they just went ahead and wrote it anyway because CONTRARIAN!
I wasn’t aware of the Foreign Gifts and Decorations Act’s clarification. But what is the “employing agency” for the President or for a member of Congress? For example, Congressman Jim McDermott received a Knighthood from Lesotho two years ago. Various military honors are approved by DoD and there is a process (Schwartzkopf’s award surely went through this), but what about honors outside DoD?
Regardless, accepting the money (but not the honor) would be indistinguishable from bribery (payment for actions). Likewise the entire argument is moot with a simple Congressional bill OKing it.
Presumably, the DOJ and Ethics Committees handle such things. And Obama has already said the prize money would go to charity (not sure which).
They most certainly _are_ making this argument “out of pique”, because _why_ earlier sitting Presidents received this award is utterly meaningless. The fact is previous officeholders have been in exactly the same position that Obama is in now (regarding the Nobel), but Rotunda and Pham made up a completely different “rule” about “future actions” just so they could complain about Obama breaking it. They’re full of crap.
That might make the law inapplicable to this award to Obama as may the fact the act specifies “employee”. The President is not an employee of the United States Government but rather a Constitutional Officer. Start considering him an employee and all sorts of laws start applying the POTUS as well as the Cabinet secretaries.
Still Congress should consent to this award, unless legitimate concern is held due to the stated intention of the Nobel committee (appointed by a foreign state) to influence the president’s actions.
I wonder how the protocol that all gifts given to the POTUS are actually property of the United States will impact this award, i.e., the prize was given to a serving president for the conduct of his official duties by a foreign state.
Gasp, today we find out that not only did President Obama not deserve the Nobel Peace Prize, but in accepting the award he was violating the Constitution!!!! As is my wont, and my desire to remain an informed citizen, I tracked the authors place of residence. Ron Rotunda is not only professor of law at George Mason University, but a fellow at the Cato Institute. Peter Pham’s lair is here:
Kind of speaks for itself, as a group of visionary philanthropist set up a nonpartisan advisory board consisting of gray beard Republican warriors…
Time to see what the Volokh Conspiracy was up to. Four different post on Obama’s Nobel, three of the snide variety (pardon me, I have some snot in my nose that I have to get rid off), and the chief himself, Eugene, weighting in. These snip will do:
Does not take a PhD in Political Science the answer that one. The Prize is awarded by the Nobel Foundation, the only function of Parliament is to pick 5 folks to evaluate the worthiness of the nominees. My view, of 135 correspondents to Eugene Volakh’s post, uh_clem said it best:
Whoa. I should have looked up the Receipt and disposition of foreign gifts and decorations law earlier.
First off the law defines the President as an employee for the purposes of the law.
However, the retention and wearing of gifts is very dependent on the value. I doubt anyone would claim the Nobel Peace Prize was of minimal value? If not, then it is the property of the United States and not Obama. The cash is the property of the United States. The medal itself having more than minimal value is the property of the United States. Obama would be able to retain and wear some symbol of the medal of his own volition.
So it appears that some Congressional action will be required for Obama to retain possession of the medal and to direct the donation of the award to charity. Otherwise it is the property of the United States.
Two right-wing hacks write a hit-piece on Obama without doing basic research? I’m shocked.
Ugh,
Exactly. The only thing more shocking is that the so-called liberal media published a screed from right wing hacks without even doing a basic fact check.
I’m not as concern with the legal aspect as I am the moral aspect. The award was meant to influence the actions of an elected officer by giving that person a award. The money can be turn over to the U.S. but the award will always be Obama’s. This is simply wrong. Our elected official shouldn’t accept any awards that our intended to influence them regardless of wither or not it will.
I remember reading the memoirs of a French guy that complain that the U.S. didn’t know proper etiquette because their negotiators wouldn’t offer or take personal bribes. Yes these actions cause friction with foreign entities but I think that is the way it should be with some low level exception.
Low level exceptions get a bit tricky. An Army Officer dealing with local tribes can torpedo his efforts by refusing gifts but usually can counter this by giving something of equal value back. Usually it is best to refuse gifts and tell them that you are not allowed to accept gifts.
Higher up should even though their intentions may have been good, never started accepting personal honors while in office. The problem with trying to get along with others and being part of the group is that you can end up losing yourself.
Would the estates of Woodrow Wilson (recipient of the prize while president in 1919) and Theodore Roosevelt (recipient of the prize while president in 1905) have to give back the money? Or would that be some kind of ex post facto thingy?
JKB appears to have a good point. A gift in excess of $100 can’t be accepted by Obama and gifted to charity. At best, and that’s assuming rejection would create a foreign policy problem, he’s accepted on behalf of the United States and it is U.S. property.
There are separate provisions for decorations, which is defined as “an order, device, medal, badge, insignia, emblem, or award.” The Nobel Prize consists of a diploma, a medal and a document. Congress has only consented to employees accepting and retaining decorations received for active military service. Otherwise, decorations are also the property of the U.S. government which must be handed over.
Note the general policy statement in the law:
Roosevelt sent a diplomat to accept the prize for him and the money was put in trust:
I can’t tell what Wilson did, he appears to have suffered his stroke by the time (the award ceremony for the 1919 prize was held in December of 1920) and his actions and thoughts may not have even been his own at that time.
A bunch of nonsense. The whole crux of their argument depends on the following sentence (since past sitting Presidents have indeed received the prize):
That is pure conjecture, and furthermore this difference is not cited at all in the Constitution. The given argument is DOA. (NOTE: I just noticed that legion already made this point and more clearly than I did.)
So you are for campaign reform, Wayne? Good to hear. No more corporate campaign contributions, yeah!
Furhead
Actually I do. Only individuals should be allowed to give campaign contributions not corporations or unions. Same goes for campaign volunteers. Non coordinated policies advocates is OK.
“Obama’s award is different. It is intended to affect future action.â€
“That is pure conjectureâ€
No it is not. The committee members flat out stated that they wish to influence Obama’s future action. One may agree or disagree with what they trying to influence him to do, but the end result is they are giving him an award to attempt to influence Obama.
.
Can you cite any support for that statement? “The committee members flat out said…” is not evidence. It is an unsupported claim made by you.
I guess the right has to talk about something to take the focus off of the stellar performance of the stock market in the Obama economy. I bailed on the market in ’04 & got back in in January. It’s working our pretty darn well…
Seriously? The Dow’s back to where it was the week before the 2008 election.
Gee, If I paid 1.4 Million (or even a substantially smaller amount) to influence a politician, It’d be called a bribe.
Wasn’t Jack Abramoff jailed for doing just such a thing. Of course Abramoff compares to the NPP committee rather than Obama.
You weren’t really expecting reality from anjin were you James?
Even Obama agrees the committee is trying to influence future actions.
“Obama, as if acknowledging the unusual nature of the award, accepted it “as a call to action” rather than as a reward for past accomplishmentsâ€
A call of action by someone is an attempt to influence future action.
http://www.latimes.com/news/nationworld/nation/la-na-nobel-obama10-2009oct10,0,1974258.story
I haven’t found the clip I saw of one of the committee members flat out saying he hope it encourages the President to follow through on some of his promises but most of the Google sites headlines call it “a call to actionâ€.
The actual prestige the award brings is worth more than the 1.4 million dollars. The speaking fees that a common person who receive the award would be large for one. Many wealthy people would spend millions and do all sorts of things to receive the award. Forgetting about the prestige of it is a mistake.
Obviously we can’t expect reality from you either…
Actually, out side of the strange alternate reality the GOP exists in, Obama already has all of the prestige he needs. You are probably a little confused here because you are thinking about “conservative” leaders who have none…
Heh, I guess An Interested Party doesn’t expect much reality from Merriam-Webster either.
Main Entry: bribe
Pronunciation: \ˈbrīb\
Function: noun
Etymology: Middle English, morsel given to a beggar, bribe, from Anglo-French, morsel
Date: 15th century
1 : money or favor given or promised in order to influence the judgment or conduct of a person in a position of trust
2 : something that serves to induce or influence
“Obama already has all of the prestige he needsâ€
Is that why most legit polls show his approval rating being low. His prestige sure hasn’t gotten any results but empty praises from foreign governments. His prestige can’t even land the Olympics. Also there can never be enough praise or prestige for an egotistical person like Obama.
“”conservative” leaders who have noneâ€
You understand that there is a difference between having none and not seeking it like some crack addict whore.
I don’t know much about this Merriam dude but I’m pretty sure that that Webster dude was a Christian, and their opinions no longer mater…..Unless their good Christians like Obama and support abortion and global cooling and giving the rich white people(who ain’t liberals) there comeuppance!!!!
What hackery.
A ten second Google search would have told these two idiots that the Emolument Clause does not apply because the Nobel Peace Prize Committee is not part of the government of, and does not represent, a foreign state:
And their whole speculation about Obama’s tax deduction is sheer nonsense.