an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
The five-member Nobel commission is elected by the Storting, the parliament of Norway. Thus the award of the peace prize is made by a body representing the legislature of a sovereign foreign state. There is no doubt that the Nobel Peace Prize is an "emolument" ("gain from employment or position," according to Webster).
The argument appears to turn on whether the prize is retrospective or prospective, designed to reward past actions or encourage future ones. Rotunda and Pham's distinction between the donor's retrospective and prospective intentions has no basis in the text of the clause. It is simply a makeweight necessary to distinguish away all that inconvenient past history.
In any case, one could have just as easily understood the prizes to Roosevelt and Wilson as attempting to influence behavior in the future as well as the award to Obama. Roosevelt and Wilson were, after all, sitting presidents whose actions could clearly affect other nations. Although Wilson received the prize near the end of his term when he was debilitated by a stroke, Roosevelt received the award in December 1906, with two years to go in his presidency. And what about Henry Kissinger, who was also awarded the prize in 1973 while holding an "Office of Profit or Trust" in the U.S. government, first as National Security Advisor, and then as Secretary of State? Surely the Nobel committee could be accused of attempting to influence Kissinger's later actions as Secretary of State. It's also worth noting that Charles Dawes won the Nobel Peace Prize in 1925 when he was Vice-President, and he continued to serve in that capacity until 1929.
In short, Rotunda's and Pham's distinction between awards for past and future conduct makes little sense in practice, because foreign governments might often reward past behavior in order to influence future behavior. But their argument is wrong for another reason. The Emoluments Clause allows Congress to consent to awards from foreign governments. And Congress has consented to the acceptance of the award through the Foreign Gifts and Decorations Act, in which Congress consents to "decorations" (i.e., awards like the Nobel Prize) "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." The money for such a gift is accepted on behalf of the United States.
This episode has led me to two conclusions. First, the Washington Post Op-Ed section does not appear to have a lawyer on hand to keep it from embarrassment. It does not take much research to discover that the argument in this piece is frivolous. But no research was done.
Second, I have noticed an increasing lack of seriousness among some members of the modern conservative movement. We see it in the tea party protests, in the work of talk show hosts and political commentators, but now even in the work of accomplished lawyers and intellectuals who should know better. It is one thing to disagree with a sitting president's policies, but in our deeply polarized and poisonous political environment, an increasing number of politicians, operatives, and intellectuals now proclaim almost reflexive opposition to anything associated with President Obama or anything he does, says, or supports. Indeed, in this case, Rotunda and Pham have gone well past arguing that things that President Obama favors are unconstitutional; now they argue that things are unconstitutional because somebody wants to honor him.
It is increasingly difficult to parody what politicians and intellectuals will now say or do. Anything one can think of is already topped by the Washington Post and Wall Street Journal editorial pages.
This may be good politics, but I doubt it. It is certainly not sound legal argument.