Malcolm Rivera
The US Constitution makes several references to foreign and domestic affairs, particularly in the context of the President's role in foreign policy and the prevention of foreign influence on federal officeholders. The President is responsible for shaping and determining foreign policy initiatives, receiving foreign ambassadors, and withdrawing the US from treaties. The Foreign Emoluments Clause, or Article I, Section 9, Clause 8, prohibits American ambassadors from accepting gifts from foreign governments to prevent bribery and corruption and ensure undivided loyalty to the US. The Reception Clause implies broad power over foreign policy, while the Take Care Clause mandates the enforcement of US laws. The Constitution also includes a domestic emoluments clause (Article II, Section 1, Paragraph 7), prohibiting the President from receiving emoluments beyond compensation for their services.
| Characteristics | Values |
|---|---|
| Oath of Office | "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic" |
| Foreign Emoluments Clause | "No Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind from any King, Prince, or foreign State" |
| Domestic Emoluments Clause | Prohibits the president from receiving any "Emolument" from the federal government or the states beyond "a Compensation" for services as chief executive |
| Reception Clause | The president receives all foreign ambassadors, implying broad power over foreign policy matters |
| Take Care Clause | The president must "take care that the laws be faithfully executed" |
| Treaties | Must be approved by the Senate |
| War | The president may only act alone to repel sudden attacks, but does not have the power to 'declare' war |
| Trade | State and local governments have sought ways to express dissatisfaction with foreign human rights policies or to curtail trade with certain countries |
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What You'll Learn
The Foreign Emoluments Clause
The clause was designed to prevent corruption and shield US federal officeholders from "corrupting foreign influences". It ensures that federal officials do not receive bribes or gifts that could influence their loyalty and decisions, keeping their loyalties undivided and solely with the United States. This clause is particularly relevant for ambassadors and diplomatic personnel, who are often the recipients of gifts from foreign governments and their officials.
The modern Foreign Emoluments Clause differs from its predecessor in two key ways. Firstly, it expressly permits officers of the United States to accept gifts from foreign governments with the consent of Congress. Secondly, it only applies to Offices of Profit or Trust under the United States, excluding state positions, unlike its predecessor, which applied to both federal and state offices.
The exact meaning and scope of the Foreign Emoluments Clause have been debated due to its limited interpretation by the courts. However, the consensus among legal scholars is that the prohibition applies broadly to all federal officeholders, whether appointed or elected. The clause has been invoked in legal challenges, such as during the administration of President Donald Trump, where his business interests and retention of financial stakes in enterprises during his presidency were alleged to have violated the Emoluments Clauses.
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The Oath of Office
The phrase "against all enemies, foreign and domestic" is mentioned in the Oath of Office, which is stated in Article II, Section I, Clause 8 of the US Constitution. The Oath of Office is the oath sworn by the President-elect of the United States before assuming their duties. The current form of the oath is as follows:
> "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
The Constitution does not specify what the swearing-in ceremony must include, and different presidents have chosen different rituals. While most have chosen to swear on a Bible, John Quincy Adams used a book of law, and Teddy Roosevelt did not use any book. The President-elect is usually sworn in by the Chief Justice of the US Supreme Court, but this is also not mandatory.
The Vice President also takes an oath of office, which is administered immediately before the President's. The current form of the Vice President's oath is as follows:
> "I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same: that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter."
> "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."
The original oath for members of Congress was adopted in 1789 and stated: "I do solemnly swear (or affirm) that I will support the Constitution of the United States." This oath was revised during the Civil War due to concerns about traitors.
The phrase "all enemies, foreign and domestic" is also present in the Constitution's Foreign Emoluments Clause (Article I, Section 9, Clause 8). This clause prohibits American ambassadors stationed abroad from accepting gifts from foreign governments and their officials to prevent bribery and corruption and ensure undivided loyalty to the United States.
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Treaties with foreign governments
Treaties are official agreements between the United States and foreign governments. The Treaty Clause in Article II of the Constitution vests the power to make treaties in the national government, specifically the President acting with the advice and consent of the Senate. This is in contrast to the Articles of Confederation, the first governmental framework of the United States, which accorded significant autonomy to individual states in foreign affairs and required a supermajority of states to approve treaties.
The Treaty Clause was included in the Constitution to address concerns about the ineffectualness of the Articles of Confederation, which had resulted in an inability to uphold international obligations and had hindered the nation's foreign relations. The Treaty Clause provides that the power to make treaties is shared between the President and the Senate. While the President shapes and determines US foreign policy initiatives and can enter into discussions with foreign governments, the Senate must approve treaties, with the power to attach conditions or reservations. Treaties are comparatively rare in modern US foreign policy, with congressional-executive agreements and executive agreements comprising the majority of international agreements.
The Supreme Court has consistently held that an international accord, including a treaty, that is inconsistent with the US Constitution is void. The Court has also maintained that the judiciary should not intervene in international controversies arising from Congressional action, as it is a political question beyond judicial review. In cases of conflict between treaties and state or federal statutes, courts have typically held that later-in-time statutes supersede treaties.
The Foreign Emoluments Clause in Article I, Section 9, Clause 8 of the Constitution prohibits American ambassadors and diplomatic personnel from accepting gifts from foreign governments and their officials. This clause aims to prevent bribery and corruption and ensure undivided loyalty to the United States. The modern version of this clause differs from its Confederation-era predecessor by expressly permitting officers to accept gifts from foreign governments with Congressional consent and by only applying to Offices of Profit or Trust under the United States, not state positions.
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Foreign relations and state laws
The US Constitution's allocation of power over foreign relations to the federal government, to the exclusion of the states, has been affirmed by the Supreme Court on several occasions. In 1840, the Court stated:
> it was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state authorities.
The Court maintained this stance a century later, declaring:
> No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees.
This exclusivity of federal power in foreign affairs is reflected in several provisions of the Constitution. The Reception Clause, for instance, grants the President the authority to receive all foreign ambassadors, implying broad powers over foreign policy. The President also has the power to shape and determine US foreign policy initiatives, enter into discussions, and give conditional approval to agreements with foreign governments, subject to Senate approval.
The Constitution's Foreign Emoluments Clause, or Article I, Section 9, Clause 8, prohibits American ambassadors and diplomatic personnel from accepting gifts from foreign governments and their officials. This provision aims to prevent bribery and corruption, ensuring that American diplomats' loyalties remain solely with the United States.
Despite the federal government's exclusive power over foreign relations, states have occasionally attempted to express their dissatisfaction with foreign governments' policies. In the 1990s, for example, some state and local governments sought to criticise the human rights policies of certain foreign governments and curtail trade with these countries. However, the Supreme Court struck down these attempts, citing interference with federal foreign policy.
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The President's role in foreign policy
The US Constitution grants the President a significant role in shaping and administering the nation's foreign policy. The President is the chief diplomat and the supreme military commander of the US Army, Navy, Air Force, Marines, and Coast Guard. As the head of the Executive Branch, the President has the authority to negotiate treaties with other nations, appoint ambassadors, and receive all foreign ambassadors. This power is known as the Reception Clause, implying that the President has broad power over foreign policy matters.
While the President does not make treaties, they can enter into discussions and give conditional approval to agreements reached with foreign governments, subject to Senate approval. The President also has the authority to withdraw the US from treaties when it is in the country's best interests. The President's power over recognition of foreign governments is generally understood to be exclusive, although there have been instances of Congress playing a role in such matters.
The Foreign Emoluments Clause in Article I, Section 9, Clause 8 of the Constitution prohibits American ambassadors stationed abroad from accepting gifts from foreign governments and their officials. This is to prevent bribery and corruption and to ensure undivided loyalty to the United States.
In summary, the President of the United States has a central and influential role in shaping and executing the country's foreign policy. They have the authority to negotiate and approve treaties, recognize foreign governments, receive foreign ambassadors, and make decisions regarding military engagements. The President's powers are balanced by the Senate's approval process and the checks and balances provided by Congress and the courts.
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Frequently asked questions
The Foreign Emoluments Clause, also known as the Emoluments Clause, is a provision of the U.S. Constitution that prohibits American ambassadors stationed abroad from accepting gifts from foreign governments and their officials.
The purpose of the Foreign Emoluments Clause is to prevent American diplomats from being bribed or corrupted by foreign gifts, and to ensure their loyalties remain with the United States.
In 1999, the Court struck down Massachusetts' Burma sanctions law on the basis of statutory preemption, as it interfered with federal foreign policy.
The Domestic Emoluments Clause, also known as Article II, Section 1, Paragraph 7, prohibits the President from receiving any "Emolument" from the federal government or states beyond "a Compensation" for their "Services" as chief executive.
The Oath of Office is an oath or affirmation that the President of the United States must take before assuming office, swearing to faithfully execute the office and defend the Constitution against all enemies, foreign and domestic.
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