Kissinger's Nobel Peace Prize [skip if bored by topic]

Volokh, Eugene VOLOKH at
Wed Oct 28 15:25:48 PDT 2009

            I agree that practice has been in favor of treating the Peace Prize as not being a present from a "foreign State."  And I think practice should generally be quite influential.  But I'm not sure how influential it should be, especially given how often it has been departed from (again, see New York Times v. Sullivan, Elrod v. Burns, Roe v. Wade, Texas Monthly v. Bullock, and many more).  Still, I appreciate the extra data point, and thought I'd likewise pass along another extra data point, the most recent OLC analysis of what constitutes a foreign state, 18 U.S. Op. Off. Legal Counsel 13 (Mar. 1, 1994) (Walter Dellinger).

            The opinion takes the view that even when a government-run institution - there, a university - does "not perform political, military, or diplomatic functions" (and it seems to me, for reasons I mentioned earlier, that the Nobel Committee does perform a political function for Norway), it is still presumptively treated as an instrumentality of a "foreign State."  But that presumption can be rebutted if "the university is independent of [the] government when making faculty employment decisions"; presumably when the issue is a present rather than employment, the test would focus on independence when making decisions about whom to award the present.  In that case, the OLC concluded that the university was indeed so independent, a sensible conclusion about research universities, which are generally self-governing to a very high degree, especially as to their employment decisions.

            It seems to me that this cuts in favor of treating the Nobel Committee as likewise an instrumentality of the Norwegian government, since the present-giving decisions are made directly by five Parliamentary appointees, two of whom are still members of Parliament (and one the President of Parliament).  There still remains the question whether the analysis should be different when an instrumentality of a foreign government distributes money from a private fund - i.e., whether the focus should be on whether the decisionmakers are agents of a foreign State, or whether the owners are agents of a foreign State.  I'm inclined, for reasons I mentioned earlier, to think that the focus should be on who makes the award-giving decision, not who provided the money a century ago (or which foundation owns it now), since that would be the source of the possible indebtedness that the Clause is trying to (prophylactically) avoid.

            There also remains the question, as I acknowledged at the outset, of whether longstanding practice trumps the text, and the OLC's interpretation of the text in other contexts.

            Finally, let me stress again that, even if I'm right that the prize is a present from an instrumentality of a foreign State, it would likely just mean that the President has to accept the prize on behalf of the U.S. Treasury, rather than giving it to a charity of his choice (which seems to be his current plan), since it seems likely that such acceptance on behalf of the U.S. Treasury would satisfy the statute that Congress passed in giving approval for receipt of such presents.


From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Mark Tushnet
Sent: Tuesday, October 27, 2009 11:00 AM
To: conlawprof at
Subject: Kissinger's Nobel Peace Prize [skip if bored by topic]

According to the New York Times of Dec. 1, 1973, Henry Kissinger "announced tonight that he had established a $57,500 scholarship fund for children of American servicemen killed or missing in action in Indochina."  If 5 USC 7342 was in force in 1973, this suggests that (a) Kissinger did not regard the prize as covered by the statute, which would make the prize money property of the United States on receipt of the prize, and that (b) Kissinger and whatever lawyers who may have vetted the issue did not regard the prize as covered by the Foreign Emoluments Clause.  If this is right, there are four data points - every relevant instance - of prior practice on executive branch interpretation of the clause in relation to the prize.

Mark Tushnet
William Nelson Cromwell Professor of Law
223 Areeda Hall
Harvard Law School
Cambridge, MA  02138
ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)

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