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Wednesday, December 02, 2009

It's The Law: Obama Cannot Accept Nobel Peace Prize (3 Updates)

On December 10, the Nobel Awards will be handed out.

Tad Armstrong, a lawyer and founder of ELL Constitution Clubs (www.ellclubs.com), writes in today's St. Louis Post-Dispatch that the Nobel Peace Prize is not Obama's to keep:

Congratulations, Mr. President, but if you care about the rule of law, you'll have to fork over the Nobel Peace Prize within 60 days of accepting it next week. Contrary to Mel Brooks' pronouncement in "History of the World Part I," it's not always good to be the king. It's impossible if you are an American president.

Article I of the Constitution states: "No Title of Nobility shall be granted by the United States: And 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 whatever, from any King, Prince or foreign State."
Clearly, the presidency is both an office of "profit" and of "trust" and the prize package (including 1.4 million clams) is included in the terms "present" or "emolument." Therefore, a sitting president cannot accept it from a "King, Prince or foreign State" without the consent of Congress.
While the Prize comes from the private Nobel Foundaation, Alfred Nobel left instructions in his will that winners would be selected by a "committee of five" appointed by the Parliament of Norway. There is no question that the intent of Article I and a 1966 law passed by Congress is such that this prize is "from a foreign State."
What does "consent of Congress" mean? It could be argued that there must be specific consent of Congress
for this prize to be accepted, which Congress has not provided because, no doubt, most of its members don't have a clue it is constitutionally required.
But in 1966, Congress passed a law dealing with the receipt and disposition of foreign gifts and decorations, including those that fall into the lap of a sitting president. That alone would bar the president from accepting the prize.
That law, now Section 7342 of the U.S. Code, provides that unless Congress provides specific consent to the president to accept the prize and changes the rules for its disposition, the prize must be accepted "on behalf of the United States of America" and the $1.4 million must be turned over to the Treasury.
Read the whole thing.

Not that Congress would deny Obama his Nobel Prize.
Right?

UPDATE: The Washington Post addressed this issue back in October, and noted why the cases of presidents Woodrow Wilson and Theodore Roosevelt were different:
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).

An opinion of the U.S. attorney general advised, in 1902, that "a simple remembrance," even "if merely a photograph, falls under the inclusion of 'any present of any kind whatever.' " President Clinton's Office of Legal Counsel, in 1993, reaffirmed the 1902 opinion, and explained that the text of the clause does not limit "its application solely to foreign governments acting as sovereigns." This opinion went on to say that the emolument clause applies even when the foreign government acts through instrumentalities. Thus the Nobel Prize is an emolument, and a foreign one to boot.

Second, the president has indicated that he will give the prize money to charity, but that does not solve his legal problem. Giving that $1.4 million to a charity could give him a deduction that would reduce his income taxes by $500,000 -- not a nominal amount. Moreover, the money is not his to give away. It belongs to the United States: A federal statute provides that if the president accepts a "tangible or intangible present" for more than a minimal value from any foreign government, the gift "shall become the property of the United States." [emphasis added]
Read the whole thing.

UPDATE 2: Fox News reported back in October that 3 Congressmen said the same thing:
Brown-Waite, R-Fla., along with Rep. Cliff Stearns, R-Fla., and Rep. Ron Paul, R-Texas, claim the president is obligated under the Constitution to obtain Congress' approval before he formally accepts the prize.
Fox News has a copy of the letter they sent to Obama (see end of post), which is interesting because it explains Theodore Roosevelt's acceptance of the award differently than above. According to the letter, Roosevelt created a committee to hold the money in trust until after he had left office. Then, he received the consent of Congress to disburse the money to charities.

No mention of how Woodrow Wilson handled it.

UPDATE 3: David Bernstein at Volokh Conspiracty writes that Obama can accept the award, even according to the statute in question:
The check is not a “decoration” and is of much more than “minimal value.” Employees may not accept gifts of more than minimal value. However, there are various exceptions, and the relevant one is that a gift may be accepted “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.” It would seem to be within the foreign policy discretion of President Obama to determine that refusing the Nobel check could cause offense, embarrassment, or an adverse effect on foreign relations.

Then, “Within 60 days after accepting a tangible gift of more than minimal value,...an employee shall– (A) deposit the gift for disposal with his or her employing agency; or (B) subject to the approval of the employing agency, deposit the gift with that agency for official use.” Accordingly, it would appear that President Obama must turn the check over to the United States government, for official use. I have not researched whether there are regulations detailing precisely how gifts which a President receives are to be disposed. It would appear that President Obama cannot personally give the Nobel money to charity.

Thus, it seems clear that the statute already supplies the constitutionally-required congressional consent for President Obama to accept the Nobel Peace Prize, and no further action by Congress is needed, provided that President Obama signs the check over the government, as the statute requires.
Of course, 'accepting' the award and 'keeping' it are not the same thing now, is it?


Crossposted on Soccer Dad

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