Notes From Babel

The Debate on the Constitutionality of Obama’s Nobel Prize

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Jack Balkin at Balkinization has this post tearing into this Washington Post op-ed by Ronald Rotunda (at Chapman Law School) and J. Peter Pham over the constitutionality of President Obama’s acceptance of the Nobel Peace Prize.  Rotunda/Pham’s piece points out, in relevant part:

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).

It’s an interesting argument.  It starts from the plain text of the constitution, and then moves on to explain why the two instances where the clause may have applied in the past—with Presidents Roosevelt’s and Wilson’s Nobel Prizes—perhaps do not, while it may still apply to President Obama’s acceptance of his award.

But Prof. Balkin does not find the argument interesting in the least.   Instead, he accuses his colleagues of partisanship and of “embarrass[ing]” the Washington Post (as if the WaPo doesn’t do a fine job of that already on its own). He also argues:

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.

And:

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.”

Balkin then proceeds to pile on the caustic remarks:

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.

A few thoughts:

— Why is every disagreement, even among academics, have to devolve to accusations of partisanship?

— It seems relevant to me that the award was based expressly on future conduct—much different than the implied hope that future conduct will resemble past conduct as in Roosevelt’s and Wilson’s awards.

— It is dubious that the Foreign Gifts and Decorations Act can satisfy the emolument clause, as it would constitute an impermissible delegation to the President of a discretionary power given to Congress.  The Constitution divided this power respecting acceptance of emoluments from foreign nations—Congress is not empowered to glue it back together.

At the very least, it would be nice of a discussion could be had of such things without the threat of being called an “embarrassment” by those who are supposed to be colleagues.  Certainly, an op-ed piece is not a piece of scholarly writing.  Then again, I did not see any footnotes to support Balkin’s conclusion that “It is certainly not sound legal argument.”  So is the implication here simply that scholars should not communicate with the commoners?

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Written by Tim Kowal

October 24, 2009 at 10:28 am

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