Obama’s Nobel Unconstitutional?

noble peace prizeRon 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Congress gave its consent to the acceptance of certain gifts and decorations in the Foreign Gifts and Decorations Act (originally enacted in 1966).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.

FILED UNDER: Barack Obama, Law and the Courts, US Politics, , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Bill H says:

    Besides which, the Nobel Committee is not a “King, Prince or foreign State.”




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  2. 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.

    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!




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  3. Richard Gardner says:

    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.




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  4. James Joyner says:

    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?

    Presumably, the DOJ and Ethics Committees handle such things. And Obama has already said the prize money would go to charity (not sure which).




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  5. legion says:

    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.




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  6. JKB says:

    …awarded for other outstanding or unusually meritorious performance

    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.




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  7. Our Paul says:

    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:

    The Foundation for Defense of Democracies (FDD) is the only nonpartisan policy institute dedicated exclusively to promoting pluralism, defending democratic values, and fighting the ideologies that threaten democracy.

    FDD was founded shortly after 9/11 by a group of visionary philanthropists and policymakers to support the defense of democratic societies under assault by terrorism and militant Islamism. Our Leadership Council of Distinguished Advisors includes former FBI Director Louis J. Freeh, former House Speaker Newt Gingrich, former National Security Advisor Robert “Bud” McFarlane, former Ambassador Max Kampelman, Sen. Joe Lieberman (ID-CT), and former CIA Director R. James Woolsey.

    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:

    On further reflection, I’ve come around to the view that the President may indeed accept both the money and the prize, but…

    So is the Nobel Committee an agent or representative of the Parliament that appointed it, or not?

    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:

    But if you guys want to raise a fuss be my guest. Maybe you can get Ms Taitz to write a brief for you.




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  8. JKB says:

    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.

    (c)
    (1) The Congress consents to—

    (A) the accepting and retaining by an employee of a gift of minimal value tendered and received as a souvenir or mark of courtesy; and

    (B) the accepting by an employee of a gift of more than minimal value when such gift is in the nature of an educational scholarship or medical treatment or 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; and




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  9. Ugh says:

    Two right-wing hacks write a hit-piece on Obama without doing basic research? I’m shocked.




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  10. Dantheman says:

    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.




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  11. Wayne says:

    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.




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  12. sam says:

    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?




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  13. PD Shaw says:

    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:

    The President shall direct all Chiefs of a United States Diplomatic Mission to inform their host governments that it is a general policy of the United States Government to prohibit United States Government employees from receiving gifts or decorations of more than minimal value.




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  14. PD Shaw says:

    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?

    Roosevelt sent a diplomat to accept the prize for him and the money was put in trust:

    The $36,734.79 prize was held in trust for Roosevelt’s intention by a committee which included the Chief Justice of the Supreme Court and the Secretaries of Agriculture, Commerce, and Labor. They made no use of the money, and it gathered interest until 1917 when Roosevelt asked Congress to return it to him for distribution among various charities in the United States and Europe which were providing relief to victims of the World War. In August of that year, the total sum – $45,482.83 – was so distributed.

    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.




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  15. Furhead says:

    A bunch of nonsense. The whole crux of their argument depends on the following sentence (since past sitting Presidents have indeed received the prize):

    Obama’s award is different. It is intended to affect future action.

    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.)




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  16. Furhead says:

    Our elected official shouldn’t accept any awards that our intended to influence them regardless of wither or not it will.

    So you are for campaign reform, Wayne? Good to hear. No more corporate campaign contributions, yeah!




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  17. Wayne says:

    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.”
    “That is pure conjecture”

    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.




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  18. Pug says:

    The award was meant to influence the actions of an elected officer by giving that person a award

    .

    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.




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  19. anjin-san says:

    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…




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  20. James Joyner says:

    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.

    Seriously? The Dow’s back to where it was the week before the 2008 election.




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  21. rodney dill says:

    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.

    Seriously? The Dow’s back to where it was the week before the 2008 election.

    You weren’t really expecting reality from anjin were you James?




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  22. Wayne says:

    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 accomplishments”

    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 action”.




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  23. Wayne says:

    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.




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  24. An Interested Party says:

    Gee, If I paid 1.4 Million (or even a substantially smaller amount) to influence a politician, It’d be called a bribe.

    Obviously we can’t expect reality from you either…




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  25. anjin-san says:

    Forgetting about the prestige of it is a mistake.

    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…




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  26. rodney dill says:

    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




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  27. Wayne says:

    “Obama already has all of the prestige he needs”

    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 none”

    You understand that there is a difference between having none and not seeking it like some crack addict whore.




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  28. G.A.Phillips says:

    Heh, I guess An Interested Party doesn’t expect much reality from Merriam-Webster either.

    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!!!!




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  29. Zuzu says:

    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:

    Since the first Nobel Prizes were awarded in 1901, the Peace Prize has, in accordance with Alfred Nobel’s will, been awarded by a committee of five, appointed by the Storting (the Norwegian Parliamant), but without the committee being formally responsible to the Storting.

    [. . .]

    The committee is formally independent even of the Storting, and since 1901 it has repeatedly emphasized its independence.

    [. . .]

    The year after, the Norwegian Storting formally decided to ban members of the Government from the Committee. A second change was made in 1977, when the Storting decided that its members should not participate in nonparliamentary committees appointed by the Storting itself.

    [. . .]

    Unlike the prize award ceremony in Stockholm, it is the Chairman of the Nobel Committee, and not the King, who presents the diploma and the medal.

    This is meant to emphasise the independence of the Nobel Committee.

    Nobel Prize website

    And their whole speculation about Obama’s tax deduction is sheer nonsense.

    Sec. 74. . . .(b) Exception for certain prizes and awards transferred to charities

    Gross income does not include amounts received as prizes and awards made primarily in recognition of religious, charitable, scientific, educational, artistic, literary, or civic achievement, but only if—

    (1) the recipient was selected without any action on his part to enter the contest or proceeding;

    (2) the recipient is not required to render substantial future services as a condition to receiving the prize or award; and

    (3) the prize or award is transferred by the payor to a governmental unit or organization described in paragraph (1) or (2) of section 170 (c) pursuant to a designation made by the recipient.

    Internal Revenue Code




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