(H/T – Hot Air Headlines)
Ronald D. Rotunda and J. Peter Pham address that in today’s Washington Post. Within the confines of a relatively-short column that is optimized for print (specifically, no links) and briefly goes beyond the bounds of the Nobel and into the Collar of the King Abdul Aziz Order of Merit (Saudi Arabia’s highest honor) accepted by both Presidents Barack Obama and George W. Bush, it is in the main a decent look. Before I get to my non-scholary look, however, I do have a point of order to make – as far as the Enoulments portion of the Constitution is concerned, the Constitution, and the laws and regulations set within the bounds thereof, do not care whether the impetus for an award issued by a foreign government is for past actions or the hope of future actions. Other portions of the American body of law may well distinguish between the two, but the discussion of that point, or the merits (or lack thereof) of the award itself is not germaine to this post.
Like Routunda and Pham, I start with Article I, Section 9, which states, “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.” Obama does hold an office of Trust, specifically the Office of President. The Norwegian Nobel Committee, which has announced that it will award the Nobel Peace Prize to Obama, is appointed by and reports to the Norwegian parliament, which makes it an agent of a foreign State.
Congress can pass a resolution consenting to Obama receiving the Peace Prize and all of its associated awards and gifts. If that is done, that would be the end of the Constitutional question. However, if that is not done, other mechanisms are in place to govern the implemtation of the Emoulment Clause.
While Routunda and Pham rely on a 1993 opinion from the White House Office of Legal Council that the clause applies when a foreign government acts through “instrumentalities”, I’ll head to 5 USC § 7342, which deals with the “(r)eceipt and disposition of foreign gifts and decorations”. By definition, the United States Code applies to the President, and also by definition, it defines a “foreign government” as:
(A) any unit of foreign governmental authority, including any foreign national, State, local, and municipal government;
(B) any international or multinational organization whose membership is composed of any unit of foreign government described in subparagraph (A); and
(C) any agent or representative of any such unit or such organization, while acting as such
The Norwegian Nobel Committee is appointed by the Storting, Norway’s Parliament, which makes it a unit of foreign governmental authority, and makes anything given by it subject to the United States Code.
Continuing with 5 USC § 7342, as well as the eCFR version of 41 CFR § 102-42 (current as of 10/14/2009, though I note that the official 2009 version of 41 CFR § 102 has not been released even though it was supposed to be released on 7/1/2009), it actually has different definitions for “gifts” and “decorations”, which is important because the 10 million Swedish crowns ($1.4 million at current exchange rates) given to the Laureate is not part of the Nobel award ceremony, and the US Code defines the disposition of the two differently. It defines a “gift” as “a tangible or intangible present (other than a decoration) tendered by, or received from, a foreign government”, while it defines a “decoration” as “an order, device, medal, badge, insignia, emblem, or award tendered by, or received from, a foreign government”.
While the US Code is silent on who the “employing agency” of the President is, 41 CFR § 102-42.70 states, “The National Archives and Records Administration normally handles gifts and decorations received by the President and Vice President or a member of the President’s or Vice President’s family.” Do keep this in mind because I will come back to it.
Since the US Code deals first with the disposition of “gifts”, I will first deal with the cash prize. 5 USC § 7342(c)(1) gives automatic Congressional consent to four types of gifts: those with “minimal value” (defined as under $335 as of last year), travel outside the US if allowed by the employing agency regardless of value, those of any value if the gift is accepted on behalf of the United States and the gift is given to the United States government upon acceptance, and those above the “minimal value” if refusal of the gift would “likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States”.
In that last case, 5 USC § 7342(c)(2) says the person who accepts a tangible gift has 60 days to turn over that gift to his or her employing agency for disposal or official use. While 5 USC § 7342(e)(1) authorizes the employing agency to return the gift to the person who received it, 41 CFR § 102-42.20(b)(2)(ii) requires that all cash gifts that have “no historic or numismatic value” be deposited into the Department of the Treasury.
Allow me to restate that for those who missed the lengthy explanation – While Obama can accept the $1.4 million in cash without Congressional approval if he claims that refusing it would harm foreign relations with Norway, by law he must turn it over to the Department of the Treasury.
Now we can get to the Medal and Diploma, as well as the title itself. All three are inarguably “decorations” under the US Code. 5 USC § 7342(d) allows employees, including the President, to accept and keep decorations without specific Congressional consent only if they were “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. Without this approval, the decoration is deemed to have been accepted on behalf of the United States, shall become the property of the United States, and shall be deposited by the employee, within sixty days of acceptance, with the employing agency for official use, (or) for forwarding to the Administrator of General Services for disposal in accordance with subsection (e)(1)….” Since the Code of Federal Regulations states that the National Archives and Records Administration handles gifts and declarations foreign governments give to the President, unless they decide that it is being awarded for “outstanding or unusually meritorious performance”, while Obama can still be the person to temporarily take possession of the award, he must by law do so on behalf of the United States instead of himself, and must relinquish everything to the National Archives.
I may not have access to Nexis-Lexus, but a quick search through both Yahoo News and Google News yields no sources saying that the National Archives has done so. Of course, there are several weeks left for them to do so, or alternatively for Congress to explicitly consent to Obama receiving the award.
Again, let me restate – Without either National Archives or Congressional approval, while Obama can temporarily take possession of the non-monetary instruments of the Nobel Peace Prize, he must by law do so not in his name but in the name of the United States, and then by law must relinquish all instruments of same to the National Archives.