"Present ... from any ... Foreign State"

Janet Alexander jca at stanford.edu
Sat Oct 10 12:35:38 PDT 2009

No mention is being made that the award was 
established by a private individual's will and is 
now "from" the Nobel Foundation; only the 
"selection" is by "a committee of five persons to 
be elected" by the Storting.  Recipients of the 
other prizes are selected by the Swedish Academy 
of Sciences, a Swedish medical university, and 
the Swedish Academy.   Stanford Law School awards 
the Jackson H. Ralston Prize in International 
Law.  "Winners are recommended by the dean of the 
law school to a selection panel that includes the 
president of Stanford, the chief justice of the 
California Supreme Court and the secretary 
general of the United Nations."  Recipients have 
included numerous present and former heads of 
state (e.g., Vaclev Havel, Pierre Trudeau, Oscar 
Arias, Olaf Palme, Mary Robinson, Jimmy Carter) 
This does not make the prize "from" the state of 
California or the United Nations.

At 11:36 AM 10/10/2009, Volokh, Eugene wrote:
>Content-Language: en-US
>Content-Type: multipart/alternative;
>                Hmm – I hadn’t laid it out 
> because I thought that the case for the 
> proposition that the “foreign state” clause 
> applies was pretty clear (though by no means 
> open-and-shut, and perhaps not even more likely 
> than not, at this juncture).  But I appreciate 
> the suggestion that this be made more concrete and explicit.  Here’s my shot:
>                1.  The Constitution provides 
> that “no Person holding any Office or Profit or 
> Trust under [the United States], 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.”  This rule is over- and 
> underinclusive with regard to nearly any 
> conceivable purpose, and in particular with 
> regard to the most obvious purpose of 
> preventing American officials from feeling 
> indebted to, or otherwise biased in favor of, 
> foreign powers.  It creates a bright-line rule 
> as to presents, without flexible limiting words 
> such as “unreasonable,” “unusual,” “excessive,” 
> and the like (though we know that authors of 
> American constitutional provisions of the time 
> were happy to use such words in other 
> contexts).  And this is so even though the 
> Framing generation was surely aware of foreign 
> honors that don’t create such improper 
> indebtedness, such as awards for military valor 
> in a cause in which the giving country and the 
> recipient’s country were allied, or for that 
> matter awards for scientific discovery.  This 
> bright-line rule has the merit of minimizing 
> the legal ambiguity that would be created by 
> such words, since disputes about whether the 
> acceptance of a foreign present is 
> constitutionally legitimate could be extremely 
> damaging, for little reason.  But on top of it, 
> this is one bright-line rule that has the 
> benefit of bright-line rules without much of 
> the overinclusiveness cost of such rules, since 
> any overinclusiveness could be cured on a 
> case-by-case basis by Congressional action.
>                2.  How then should we interpret 
> “foreign State”?  Obviously, foreign States 
> have all sorts of organizations.  They of 
> necessity act only through particular 
> instrumentalities, whether people, or groups of 
> people; and they often act through a variety of 
> different instrumentalities for different 
> purposes.  There’s no reason to think that an 
> action of a “foreign State” is somehow limited 
> only to a direct decision by the head of State, 
> or the entire legislative body.  A committee 
> appointed by a foreign Parliament, in which two 
> members are Parliament members (one being the 
> speaker), and the other three are former 
> Parliament members (two past Cabinet ministers, 
> and the third a senior adviser to a political 
> party’s parliamentary group), might well 
> qualify as an instrumentality of a foreign 
> State, so that its presents are presents “from ... [a] foreign State.”
>                To be sure, in this instance 
> this instrumentality is seeking to serve a 
> laudable goal that goes beyond just the 
> interests of the foreign State.  But the one 
> interpretation of the text “foreign State” that 
> seems out of bounds is an interpretation that 
> focuses on whether this particular action by a 
> foreign instrumentality raises the policy 
> concerns that animated the prohibition on 
> presents from foreign States.  Surely a 
> committee appointed by the Norwegian Parliament 
> could give an award for being a Friend and 
> Protector of Norway just as easily as it could 
> give an award for promoting peace in the whole 
> world.  It would be an odd interpretation of 
> the text to say that a committee with this 
> structure is a “foreign State” if it has the 
> former purpose and not if it has the latter 
> purpose.  What’s more, having such a 
> case-by-case purposive analysis would undermine 
> the value of having a bright-line rule.
>                3.  What’s more, there is reason 
> to prefer a broader bright-line definition of 
> “foreign State” than a narrower bright-line 
> definition, precisely because any 
> overinclusiveness in the definition (relative 
> to the plausible purposes of the Clause) can be 
> remedied by consent of Congress.  On the other 
> hand, from the Framers’ perspective, 
> underinclusiveness in the definition might not 
> have been remediable by consent of Congress, 
> because it’s not clear that Congress would have 
> had the enumerated power to control what gifts 
> the President may receive.  (Maybe it might 
> have, but it’s not clear.)  So if we say that 
> presents awarded by committees appointed by a 
> foreign Parliament are presents from a foreign 
> State, all that’s required is that both the 
> President or other officer and Congress – 
> rather than just the President or the officer 
> alone – decide whether it’s in the nation’s 
> interest for the American officer to accept the present.
>                To be sure, there are plausible 
> arguments to the contrary; and one can 
> certainly argue that accepted practice, even 
> practice that has only arisen in the past 100 
> years, should be an important interpretive tool 
> here (though one can also argue that accepted 
> practice long after the ratification should not 
> be an important interpretive tool).  I just 
> think this argument is plausible enough that it 
> can’t just be dismissed with the judgment that 
> the case against the application of this Clause is “trivially easy.”
>                Eugene
>From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
>Sent: Saturday, October 10, 2009 5:33 AM
>To: Volokh, Eugene; conlawprof at lists.ucla.edu
>Subject: RE: 5 USC 7342
>Well then, it would surely advance the 
>discussion for someone to lay out an 
>affirmative, plausible argument for the 
>proposition that the award comes from a foreign 
>state as that term is properly 
>interpreted.  Mark Scarberry's post immediately 
>preceding this one in the thread is the first 
>such effort even gesturing in that 
>direction:  Adulation by foreigners, even if not 
>from foreign governments, poses the risk of 
>corruption, such that we ought to construe 
>"foreign state" generously to include the prize 
>committee because it is closely enough connected 
>to a foreign state to fit linguistically within 
>the clause's terms, doing so conforms to the 
>clause's anti-corruption purposes, and [he 
>doesn't say this, but I assume it has to be part 
>of the argument] the isolated instances of 
>practice are insufficient to offset this 
>policy/purpose based interpretation.  I suspect 
>I could work out a way of incorporating his 
>reference to low-level political considerations 
>into a proper constitutional argument (for 
>example, by adding a qualification along the 
>lines, "generously construe the clause if enough 
>people -- how many?  what's the evidence that 
>the level is met? -- think there's a risk, 
>etc."), but it seems to me that to have this 
>discussion proceed on the assumption that 
>there's a non-frivolous affirmative case to be 
>made is silly.  Anyone want to offer a better 
>affirmative argument that those who think the 
>interpretive issue is trivially easy could 
>address?  If not, I'll stick with my "trivially easy" position.
>Mark Tushnet
>William Nelson Cromwell Professor of Law
>Harvard Law School
>Areeda 223
>Cambridge, MA  02138
>ph:  617-496-4451 (office); 202-374-9571 (mobile)
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>Sent: Sat 10/10/2009 1:16 AM
>To: conlawprof at lists.ucla.edu
>Subject: RE: 5 USC 7342
>                Oh, I surely don't claim that 
> original meaning is all that counts in our 
> legal system.  And I agree that consistent 
> practice has some bearing.  But neither is our 
> understanding of the provision's purpose all 
> that counts - nor is it entirely clear that the 
> purpose isn't applicable here.  So I'm not sure 
> I see why the meaning is "trivially easy."
>                Eugene
>From: Mark Tushnet 
>[<mailto:mtushnet at law.harvard.edu>mailto:mtushnet at law.harvard.edu]
>Sent: Friday, October 09, 2009 9:57 PM
>To: Volokh, Eugene; conlawprof at lists.ucla.edu
>Subject: RE: 5 USC 7342
>1.  Original meaning isn't -- sorry to have to 
>say this -- the only method constitutional 
>lawyers use to interpret the 
>Constitution.  2.  Consistent and unchallenged 
>practice, even if rare because the occasions are 
>rare, has some bearing on interpreting the 
>Constitution, even if it sheds no light on 
>original meaning.  (The "too young" members 
>problem is not one of consistent and 
>unchallenged practice.)  3.  The interpretive 
>question here is what counts as a foreign 
>state.  Answering that question requires (for 
>most constitutional lawyers) some reference to 
>the anti-corruption/anti-selling out to 
>foreigners purposes of the constitutional 
>provision (as embodied in a rule that 
>imperfectly tracks those purposes).  The 
>ordinary mode of reference would be to inquire 
>whether there's a significant enough chance that 
>the entity at issue is likely to pose the threat 
>of corruption/selling out to foreigners against 
>which the provision is aimed, such that the 
>entity ought to be treated as a foreign state 
>(with a sub-question dealing with how confident 
>we are as contemporary interpreters in our 
>ability to determine accurately whether there is 
>a significant enough risk, the sub-question 
>being needed to deal with the rule-ness with 
>which the anti-corruption principle is 
>expressed).  The entity at issue here is a 
>committee, a majority of whose members do not 
>hold positions in a foreign government, whose 
>members are appointed by a committee of a 
>foreign parliament.  4.  The original-meaning 
>question, "Would ordinary readers of the 
>Constitution in 1789 have understood a committee 
>appointed by a committee of a foreign 
>parliament, a majority of whose members are not 
>members of the parliament, to be a 'foreign 
>state' within the meaning of the clause," is 
>either incoherent or unanswerable in principle 
>except on the odd Lawson-Seidman approach to 
>original meaning, which asks whether reasonable 
>people like Lawson and Seidman would have so understood the term.
>There may be more points to make, but these 
>together make the interpretive question trivially easy.
>Mark Tushnet
>William Nelson Cromwell Professor of Law
>Harvard Law School
>Areeda 223
>Cambridge, MA  02138
>ph:  617-496-4451 (office); 202-374-9571 (mobile)
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>Sent: Sat 10/10/2009 12:28 AM
>To: conlawprof at lists.ucla.edu
>Subject: RE: 5 USC 7342
>                I'm puzzled about why the 
> interpretive question is trivially easy.  Are 
> we so confident that modern and 
> little-focused-on practice is dispositive of 
> how a constitutional provision should be interpreted?
>                By the way, it turns out that a 
> 22-year-old (William Claiborne) was elected to 
> the House in the late 1790s, and Henry Clay was 
> appointed to the Senate in the early 
> 1800s.  And that's very close to the drafting 
> of the relevant constitutional provisions.  To 
> be sure, the violation of the age requirements 
> is more obvious there, and yet as best I can 
> tell (and I've only started looking into this) 
> there was no objection - would that have been 
> dispositive of the meaning of the 
> provision?  (I say "would have" because later 
> on there were objections, and I think at least 
> once a 29-year-old Senator wasn't seated until he turned 30.)
>                Eugene
>From: Mark Tushnet 
>[<mailto:mtushnet at law.harvard.edu>mailto:mtushnet at law.harvard.edu]
>Sent: Friday, October 09, 2009 9:00 PM
>To: Volokh, Eugene; conlawprof at lists.ucla.edu
>Subject: RE: 5 USC 7342
>The prospective consent in 7342 is this:  (c) (1) The Congress consents to--
>       (B) the accepting by an employee of a 
> gift of more than minimal value ... ***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.
>Would refusing the prize "likely cause offense, 
>etc."?  If not, there's no prospective 
>consent.  Also, add to the list of persons 
>holding office who received the Nobel Peace 
>Prize Henry Kissinger, who was Secretary of 
>State when he received it in 1973.  It looks to 
>me as if 7342 was adopted no earlier than 1968 
>(it's late and I don't have the energy to do 
>more research), which suggests that at least 
>four persons holding an office of trust received 
>the prize prior to the statute's adoption 
>accepted it without a statute consenting.  In 
>the end, it seems to me, the interpretive 
>question is trivially easy -- about as close to 
>the classic 30-year-old president issue as one could get in the real world.
>Mark Tushnet
>William Nelson Cromwell Professor of Law
>Harvard Law School
>Areeda 223
>Cambridge, MA  02138
>ph:  617-496-4451 (office); 202-374-9571 (mobile)
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>Sent: Fri 10/9/2009 8:10 PM
>To: conlawprof at lists.ucla.edu
>Subject: 5 USC 7342
>On reflection, and on rereading 5 USC 7342, I've 
>come to the view that even if the award is 
>treated as being from a foreign state, receiving 
>such awards has been prospectively authorized; 
>but the material would then be deemed property 
>of the U.S., and accepted on behalf of the 
>U.S.  So there's still a question:  If the prize 
>and the money comes from a foreign state (or 
>foreign government, under 5 USC 7342), it 
>immediately becomes U.S. property; if it's not 
>from a foreign state, the President can dispose 
>of it as he sees fit (for instance, contribute 
>it to charity), at least unless some other statutory constraint is present.
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