[Note FURTHER UPDATE below.]
J.P. Freire (Washington Examiner) asks this, in relation to the constitutional provision that reads (emphasis added),
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 of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The Prize is apparently awarded by a Committee selected by the Norwegian Parliament; does it qualify as a present given by a “foreign State,” or does the Committee’s speaking for itself rather than for Norway suggest that the present does not come from a foreign State?
[UPDATE: I should note that the question isn’t about the money; I suspect the President could use the statutory authorization to accept the money on behalf of the U.S. on the grounds that “it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States.” Rather, the question is about the Prize itself, which I take it is personal and can’t be sensibly accepted on behalf of the nation as a whole — though perhaps that need not be so, given the statute’s position that even military decorations can be accepted on behalf of the United States.]
Some law professors to whom I posed the question noted that when Teddy Roosevelt and Woodrow Wilson got the Prizes while sitting Presidents, no Congressional Act was passed to authorize the acceptance of the awards. (I don’t know what happened when Henry Kissinger received an award while he was still in the Nixon Administration.) But while longstanding tradition may carry a good deal of weight in such situations, I would think that two likely fairly low-profile decisions, over a century after the enactment of the Constitution, are not enough to settle the matter.
I should stress that I by no means want to deny the President the Peace Prize. I think the decision reflects that the Peace Prize is a political statement, not an award for actual signal accomplishment on the path to peace; I much hope that President Obama can promote peace, and if he does I’ll applaud him for it (of course unless the peace is bought at too high a price), but it seems to me that his steps so far have been in the hope, intention, and planning phases and not in the actual accomplishment phase. But now that he’s gotten it, he should certainly be able to accept it. The question is whether he would need Congressional approval, approval that I’m sure Congress would be happy to provide.
A related question, by the way, is whether Congressmen might want to introduce such a proposed statute, precisely to try to create a new constitutional tradition going forward, a tradition that future Congresses and Presidents might feel constrained to follow.
FURTHER UPDATE: On further reflection, I’ve come around to the view that the President may indeed accept both the money and the prize, but if they are treated as being from a “foreign State,” then both will be “deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.” Congress seems to have authorized that prospectively, as to all presents generally, and that satisfies the constitutional mandate. Thanks to all those who’ve commented on this!
But this of course still leaves the question whether the award is from a foreign State, in which case the money and the prize promptly become U.S. property, or whether they are not, in which case the President would presumably be allowed to keep them or donate them to charity (politically much more likely than keeping them, at least as to the money). To be safe, it seems to me, the President should just transfer the money and the prize to the U.S. government, but it’s an interesting legal question whether he has to. There may of course also be statutes mandating that the President and other officials not keep certain gifts, though I don’t know what their terms exactly would be.
By the way, note that the relevant statute further defines “foreign government,” though this definition is binding for purposes of the obligation that it imposes, not necessarily for purposes of the separate prohibition imposed by the Constitution:
(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.
So is the Nobel Committee an agent or representative of the Parliament that appointed it, or not?
AJK says:
Doesn’t the King of Norway preside over the award ceremony? If so, that seems pretty dispositive to me. (Of course, I don’t think there’s any doubt that Congress would grant its consent in this case — in an totally uncontroversial case like this, it seems like it’s worth taking an extra hour to make sure the Constitution is being followed.)
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October 9, 2009, 4:01 pmA.S. says:
Um, don’t Presidents accept presents from visiting Kings, Princes and other foreign dignitaries all the time? Not usually cash, but some gift?
I recall Gordon Brown giving Obama a pen holder from the HMS Resolute. Why isn’t that prohibited?
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October 9, 2009, 4:02 pmuh_clem says:
I doubt he can accept the money (or if he’ll try — dollars to donuts it’ll be donated to some charity).
The prize itself doesn’t seem to me to be a “present” or an “office” or a “title”.
Or an “Emolument” whatever that is.
But if you guys want to raise a fuss be my guest. Maybe you can get Ms Taitz to write a brief for you.
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October 9, 2009, 4:07 pmLumpus says:
Eugene Volokh says, “I should stress that I by no means want to deny the President the Peace Prize. I think the decision reflects that the Peace Prize is a political statement, not an award for actual signal accomplishment on the path to peace....”
I repeat: The chunk of money awarded by the Nobel people is over a million dollars. Its stated purpose is to influence an elected official, since it’s “aspirational” and not for any achievement.
Don’t elected officials go to jail for taking that kind of money?
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October 9, 2009, 4:07 pmCJColucci says:
two likely fairly low-profile decisions,
These were two sitting Presidents of the United States, awarded the Nobel Peace Prize while in office. How much higher a a “profile” do you need on the question of a sitting Presidentof the United States accepting a Nobel Prize?
And what if Paul Krugman had been elected president in 2004? Could he accept the Nobel Prize for Economics for work done years earlier?
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October 9, 2009, 4:08 pmCDU says:
IIRC, Presidents are not actually allowed to keep those sorts of gifts as personal property.
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October 9, 2009, 4:09 pmPubliusFL says:
There is an Act of Congress already in effect covering this constitutional provision: the Foreign Gifts and Decorations Act. Generally, gifts below a certain value considered de minimis may be retained by the official, gifts above that value are accepted on behalf of the people of the United States, and the official has to pay the U.S. government the value of the gift if he or she wants to keep it personally.
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October 9, 2009, 4:11 pmanonymous says:
I should stress that I by no means want to deny the President the Peace Prize. I think the decision reflects that the Peace Prize is a political statement, not an award for actual signal accomplishment on the path to peace; I much hope that President Obama can promote peace, and if he does I’ll applaud him for it (of course unless the peace is bought at too high a price), but it seems to me that his steps so far have been in the hope, intention, and planning phases and not in the actual accomplishment phase. But now that he’s gotten it, he should certainly be able to accept it.
That’s very big of you Professor Volokh, and I’m certain the POTUS appreciates your support.
Oddly enough, I just wanted to comment on the somewhat stilted writing in that paragraph. May I just honestly observe that you seem ... uncomfortable making those remarks, and perhaps revert to less than your usual smooth cadence?
*just an observation*
Also, who is responsible for jacking up the price of peace, and isn’t there also a cost analysis in America just walking away when it gets too steep. (Damned if you do, damned if you don’t).
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October 9, 2009, 4:13 pmloki13 says:
Obama will have to pay the US Government a million dollars if he wants to keep a million dollars? Finally, PROOF of his socialist taxing nature!
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October 9, 2009, 4:13 pmA.S. says:
Gifts to the President are covered by statute. This statute appears to be statute by which Congress consents to the President accepting certain gifts as contemplated by Prof. Volokh. However, from my brief reading of the statute, I don’t think Obama cannot keep the money.
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October 9, 2009, 4:14 pmanonymous says:
(I much hope that you don’t take offense at what I have written; my signal intentions were not that primary objective.)
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October 9, 2009, 4:15 pmrick.felt says:
Um, don’t Presidents accept presents from visiting Kings, Princes and other foreign dignitaries all the time? Not usually cash, but some gift? I recall Gordon Brown giving Obama a pen holder from the HMS Resolute.Why isn’t that prohibited?
I would argue that the pen holder was not a gift, but part of a barter. Obama got the pen holder made from the timbers of a British ship, and paid for it with some DVDs that the Prime Minister can’t watch. I wouldn’t take that deal, but there’s enough mutual consideration for the exchange to be non-gratuitous.
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October 9, 2009, 4:17 pmA.S. says:
I like subsection (i) of the statute:
The Ambassador to Norway is now thinking: “great, now I have to inform the Nobel Committee that it is our government’s policy to prohibit Obama from receiving the money.”
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October 9, 2009, 4:18 pmOren says:
Who would have standing? Congressmen? Congress as a a body?
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October 9, 2009, 4:21 pmanon says:
Who would have standing to challenge the gift?
Edit: Great minds think alike, and so do ours.
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October 9, 2009, 4:22 pmKazinski says:
There is an Act of Congress already in effect covering this constitutional provision
Wow! That’s why I come to this blog: to learn about the law, and how it works. I didn’t know that Congress could pass laws overriding the Constitution. That makes things much simpler.
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October 9, 2009, 4:25 pmPubliusFL says:
It doesn’t override the Constitution. The Constitution says Congress must consent to such gifts. Via that legislation, Congress HAS, and imposed conditions on its consent.
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October 9, 2009, 4:28 pmAJK says:
It doesn’t override the Constitution; it gives blanket consent to the acceptance of certain kinds of gifts. And I frankly, I don’t see how the prize is covered.
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October 9, 2009, 4:29 pmMark N. says:
The relevant provision of the Constitution explicitly authorizes Congress to consent to exceptions.
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October 9, 2009, 4:30 pmroguestage says:
The Constitution explicitly allows Congress to consent to such gifts — indeed, conditions their acceptability on Congress’s consent — and people will still say that Congress is going against the Constitution in consenting to such gifts.
Not everything the President (or Congress) does is unconstitutional just because you don’t like them.
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October 9, 2009, 4:32 pmBryan Gividen says:
I will also note, there needs to be an end tag [(/a)] on the Cornell link going to the statute about how President Obama could accept the money on the US’s behalf. It’s linking the entire bottom three paragraphs.
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October 9, 2009, 4:32 pmRich says:
Actually, the prize and money are granted by the Norwegian Nobel Committee. The Storting, pursuant to Alfred Nobel’s will, appoints a committee that selects a recipient. The prize is granted by the foundation in the presence of the King, but it is not his or Norway’s property, so the present, or whichever list item you want to call it, is not from a “King, Prince, or foreign State”
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October 9, 2009, 4:32 pmPubliusFL says:
That’s the statute I was talking about. Per subsection (c), the gift can be accepted because refusal would embarass the U.S., but it becomes the property of the U.S. and not of Obama personally. So now he can claim reduction of the deficit by $1.4 million!
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October 9, 2009, 4:33 pmKazinski says:
Who would have standing to challenge the gift?
The special prosecutor? Seriously, is “no controlling legal authority” the standard here?
But I think as long as he doesn’t keep the million then there will be no legal hurdles imposed to him accepting the award, because of the body of precedent. If George Bush had received the award because of his substantial achievement of liberating 54 million people from the despotic rule of Saddam and the Taliban, I’d want him to be able to accept the award. Maybe he’ll get it next year if the new strategy is successfully implemented in Afghanistan and brings that war to a close.
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October 9, 2009, 4:36 pmAdam B. says:
The White House has stated that he’s giving the money to charity.
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October 9, 2009, 4:36 pmanon says:
The previous Anon back again.
Here’s how you would do it: File a false claims act (a qui tam lawsuit) against the Government of Norway under the False Claims Act, 31 U.S.C. § 3729(a)(1). The statute provides liability as follows:
You would have to argue that the award was a fraudulent claim for approval. It’s a stretch but you could win $250,000 dollars.
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October 9, 2009, 4:39 pmjeffry house says:
Is a Committee of the Norwegian Parliament a “foreign state”???
Well, ask yourself: Is the House Appropriations Committee a state? How about the Veterans’ Affairs Committee?
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October 9, 2009, 4:41 pmHans Bader says:
Drug companies are apparently forbidden from offering freebies to doctors in certain liberal states like Massachusetts and Vermont, under the theory that doctors’ loyalty can be bought simply by giving them free pens and beverages worth a few cents.
And the FTC just moved to restrict bloggers from praising books they receive as gifts from publishers, without disclosing the gift, under the theory that bloggers would praise dreck in exchange for receiving it for free.
Yet few liberal commentators seem to be disturbed about President Obama receiving a $1.4 million Nobel Peace Prize awarded by a foreign government. (Nobel Peace Prizes are picked by a committee of Norway’s parliament — unlike many other Nobel Prizes, which are picked by the Swedes. Obama was nominated after less than two weeks in office — when he had yet to achieve anything — seemingly to influence his future conduct in office as well as to reward him for not being George Bush).
In fact, some liberal commentators like Daily Kos dismiss objections as being unpatriotic and putting the questioner on par with terrorists like the Taliban. (So much for their disingenuous claim during the Bush years that “dissent is the highest form of patriotism” — a phrase they falsely attributed to Jefferson, who never said it).
Why the double standard? Are doctors less trustworthy than politicians?
Given the notorious politicization of the Justice Department under Obama, his turning a blind eye to wrongdoing by political allies (such as voter intimidation by the racist, antisemitic Black Panther Party), and his firing of inspector generals like Gerald Walpin who uncover corruption and misuse of federal funds by Obama supporters (as well as the Bush Administration’s disgraceful “torture memos”), I would argue that presidents, like politicians in general, are less trustworthy than doctors, and ought to be subject to more scrutiny about the gifts they receive, not less.
Obama has already proven himself willing to take positions designed to cater to an international audience at the expense of civil liberties, such as backing UN proposals to ban hate speech and anti-Islam speech in the name of forging international consensus. Such bans may be popular in Europe, and in Norway’s socialist-led parliament (which imposed confiscatory taxes on the shipping industry in 2007), but they are contrary to America’s First Amendment and Supreme Court decisions like R.A.V. v. St. Paul (1992).
The Founding Fathers thought that federal officials like the President were in serious danger of being influenced by foreign gift-givers. That’s why they drafted the Constitution to ban federal officials from accepting “any present” from foreign governments without Congressional consent.
Given that Norway is usually a friendly country, Obama’s Nobel Prize money may not result in any tangible harm, putting aside any legal issues (although Norway has differed with the U.S. on some major foreign policy issues in the past, like the Vietnam War). But it certainly is hypocritical to turn a blind eye to Obama’s $1.4 million, while obsessing over free pens and beverages being given to doctors, or free books given to bloggers.
And doing what the international community wants is sometimes at odds with U.S. interests. The U.N. recently declared Cuba’s longtime anti-American dictator Castro a “World Hero.”
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October 9, 2009, 4:41 pmWaste93 says:
If under statute the money belongs to the US Government and not the President personaly since it’s over a certain amount. How can the President give it to a charity? Or is he going to reimburse the US Government the value of the gift and then give it to charity?
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October 9, 2009, 5:37 pmJosh Blackman says:
Is President Obama Unconstitutional? I’m not a Birther. I’m a Titler. http://joshblogs.wordpress.com/2009/10/09/is-president-obama-unconstitutional-im-not-a-birther-im-a-titler/
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October 9, 2009, 5:53 pmWilliam Hamblen says:
What did Theodore Roosevelt, Wilson, Dawes and Kissinger do? I think all the other US office holders were out of office when they got theirs.
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October 9, 2009, 5:54 pmJohn Luttrell says:
If P.Obama exercises control over this Nobel Prize (i.e. gives it away), is this then taxable income?
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October 9, 2009, 5:56 pmsecond history says:
If George Bush had received the award because of his substantial achievement of liberating 54 million people from the despotic rule of Saddam and the Taliban.....
The judgement of history is still out on that achievement. Let’s check back in a decade or so and see if Iraq is still a “democracy” and if the Mayor of Kabul (I mean the President of Afghanistan) rules the entire country.
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October 9, 2009, 5:56 pmWhitehall says:
Obama should NOT donate the prize money to charity.
The cash should go to the US Treasury.
He can keep the gong.
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October 9, 2009, 5:57 pmAndrew Berman says:
This same issue came up with former Senator Edward Kennedy’s Knighthood. Just like in that case, I do not see this going anywhere.
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October 9, 2009, 5:58 pmMark E says:
What’s the big deal?
The Courts have already ruled that no American has standing to question anything about obama.
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October 9, 2009, 6:02 pmBrian G. says:
If Bush had won (yeah, I know, cold day in hell), this would absolutely have been an issue and the media would have said it was a pattern of Bush’s utter disregard for the Constitution by merely accepting the award.
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October 9, 2009, 6:03 pmanon says:
Wasn’t Reagan knighted? I guess that happened after he left office.
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October 9, 2009, 6:03 pmKaonashi says:
Now that’s an interesting question, if he has to either give it away immediately to charity or has to give it over to the U.S. government then is it still taxable income and/or is it deductable. I’m not an expert on tax law but I used and/or because I am not entirely sure that the two are mutually exclusive in this case.
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October 9, 2009, 6:05 pmEdward Sisson says:
Treating the “prize” and the money as separate items:
1) is it clear that the “prize” has to be accepted by the recipient in order to exist? If a committee announces that “X has done the most for peace this year,” that is the committee’s opinion, and even if X says “I reject this,” the committee’s statement still stands as its opinion.
I understand that several people in history have replied to the committee’s announcement that they won the prize by saying that they reject the prize, but their action can’t change the nature of what the committee announced.
2) the money is directed to Obama as an individual, rather than a gift made to a head of state because he is a head of state. It is true he is also head of state, and is being honored for his conduct as head of state, but there is a difference conceptually that matters in determining whether federal laws that mandate putting all such money gifts into the Treasury apply. Obama has said he will give the money to charity, which he can’t do if the money is covered by the miscellaneous receipts statute.
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October 9, 2009, 6:07 pmMark E says:
The comparison to T Roosevelt and W Wilson, like all excuses / spin by obama’s worshipers is BS
Teddy received his prize for negotiating a peace treaty to stop a war.
Willson received his for his efforts in forming the League of Nations
Those were actual accomplishments.
Based on his 11 days in office before his ‘earning’ the award, obama’s prize must be for when he escaped the white house to go read stories at a public school during his first week. Other than his speech on 1/21, the only other thing he did was to appoint tax evaders to his cabinet.
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October 9, 2009, 6:08 pmGaius Obvious says:
Does this mean that Obama has to write a disclaimer about this gift on whitehouse.gov under the new FTC guidelines whenever Norway is mentioned on that particular website?
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October 9, 2009, 6:23 pmMark N. says:
The discussion here is about the legality of accepting the award, though, not the wisdom of the selection. From that perspective, Roosevelt, Wilson, and Obama are all in equivalent legal positions, as recipients of the award while serving as sitting President.
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October 9, 2009, 6:27 pmMark E says:
re– Mark N — Actually they are not equivalent legal positions.
Earlier commenters were claiming the distinction between earning the prize and receiving a gift.
TR & WW had accomplishments (earned). An argument could be made that they were within the scope of their office.
obama did nothing, it is a gift and therefore fully taxable.
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October 9, 2009, 6:30 pmyankee says:
]
That was 11 days in office before being nominated. Considering that (among many others) any professor of social sciences, history, philosophy, law or theology anywhere in the world can nominate anyone they want, the fact that he was nominated after only a few days in office is meaningless.
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October 9, 2009, 6:31 pmThe River Temoc says:
That’s because (1) the award was publicly disclosed, unlike the books that bloggers were paid to review, and (2) the White House immediately announced that Obama would donate the $1.4 million to charity, so he’s receiving no pecuniary benefit from it.
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October 9, 2009, 6:37 pmBama 1L says:
Someone should contact Professor Volokh and tell him his account has been hacked.
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October 9, 2009, 6:37 pmA.S. says:
I agree with Edward Sisson that Prof. Volokh’s focus on the “Prize” rather than the money award is odd. Is winning a Prize (absent the money) a “present, Emolument, office or title”? The answer to that question is not clear to me, but my suspicion is not. A Prize seems like, say, an honorary degree presented by a college — not something covered by the clause.
The money, OTOH, seems to me to be a “present” clearly covered by the clause (and the statute), provided we think the Nobel committee is an agency of the Norway government (if not, can Obama accept million doallr gifts from foreign private citizens?). Seems to me that the money ought to go to the Treasury, not to a charity.
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October 9, 2009, 6:38 pmPC says:
President Obama should consult with Addington and Yoo. Then he can get a legal memo that protects his acceptance of the Nobel. Denying the president the ability to deal with foreign countries — during a time of war! — would be an usurpation of executive power (or something).
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October 9, 2009, 6:39 pmSarcastro says:
I don’t like it when PC channels Yoo. It’s uncanny.
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October 9, 2009, 6:47 pmStoneHead says:
Although no expert on the pertinent legal statutes, I would opine that on the face of things, there is precedent for Obama’s being able to accept the award. Both Theodore Roosevelt and Woodrow Wilson accepted the prize (and I believe the money also) and as far as I am aware, Congress made no complaint at that time. So unless there is some evidence that this was a gift for future services to be rendered, I would think that this should be viewed as being covered by that precedent.
Having said that, I agree with those commenters who have pointed out that this is an entirely undeserved award. And I would caution the Norwegian politicians who are so eager to weaken the United States by rewarding behavior that is designed to do precisely that — be careful what you wish for. But like most politicians, especially those in increasingly irrelevant Europe, they can see no further than what their corrupt sycophants and the ignorant fools in the Press tell them. When they find themselves under a less benevolent hegemonic power (Russia, China and global Islam all come to mind as being historically far more despotic and less tolerant) will they remember that they are in large part responsible for their fates?
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October 9, 2009, 6:49 pmWaste93 says:
Are not winners of the Nobel also given the ‘title’ Nobel Laurette? Probably spelled that wrong. But that would seem to be a ‘title’ under the Constituion meaning of ‘title’.
The money would seem to compromise both a present and an emolument.
Thirdly, doesn’t he have to disclose this on his taxes? Even if he gives it to charity he would have to declare it as income and then show the deduction for the charity contribution. Didn’t Obama at the begining of his term lower the deduction for charitable contributions?
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October 9, 2009, 6:49 pmAndy McGill says:
Just think what would happen if Israel gave President Bush $1.5 million award for his work on peace in the Middle East.
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October 9, 2009, 6:57 pmSteve says:
What a fascinating solution in search of a problem.
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October 9, 2009, 6:57 pmJohn Burke says:
It seems to me that if the money comes from the Norway treasury and is awarded by Norway’s parliament, the provision bars him from accepting it.
Otherwise, it’s not an “office” or “title.” The framers were rightly concerned about Americans accepting commissions of various kinds from Britain, France, Spain or others, as well as “presents” or “emoluments” any of which would steer them from executing their duties to the US properly. (Even the Anglican Church in America could not have its bishops concencrated by, in effect, the King or his agents.)
But the Nobel (other than the dough) is an honor — not unlike an honorary degree or the key to a visited city or a proclamation of “obama Day” abroad or a statue to the man in Pickadilly.
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October 9, 2009, 6:57 pmRepeal 16-17 says:
Nobody. The Supreme Court has framed standing as requiring a personal harm to the plaintiff. If the federal government, or any State, can violate the Constitution without hurting any person (individual or corporate), then there will be no judicable claim.
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October 9, 2009, 7:00 pmgullyborg says:
Here, let me look this up in my Obama rule book...
Chapter 37...
Accepting prize money...
Congress...
Constitution...
Ah, here is the answer:
RACIST!!!
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October 9, 2009, 7:06 pmGuest12345 says:
Based on the premise that most people would have a real problem with (Foreign) Acme Corp. giving Joe Random president a million-plus dollar “prize” for his work on world peace, I just can’t see how any President can be allowed to keep prize money of any meaningful amount. And if the medal is actually gold, I don’t see how that could be kept without buying it from the archives since the cutoff I read was $285.
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October 9, 2009, 7:07 pmJasonF says:
Yes! There should be a vote! A role call vote, so we know where each and every member of Congress stands on whether the President of the United States should be allowed to accept an award celebrating peace.
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October 9, 2009, 7:39 pmChristian K says:
To answer an earlier comment the funding comes from an endowment created by Alfred Nobel after his death. However there probably is a problem with accepting the Nobel Peace Prize as it is decided by “the Norwegian Nobel Committee consists of five members elected by the Norwegian Storting (the Norwegian parliament)”. Notice “Committee”, “elected”, and “parliament”. The simplest solution is for The President to formally ask congress. I seriously would doubt that it would fail.
Also another point, the deadline for nominations is Feb 3rd. The actual nomination could have occurred before The President’s inauguration.
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October 9, 2009, 7:55 pmohwilleke says:
I’ve always understood the Noble prize to be a private charitable trust established by a testamentary bequest of Noble, who was a self-made man, not a King or Prince. To my knowledge, there is no public funding for this award.
The fact that government officials are given ex officio powers of appointment over this bequest doesn’t necessarily render it a gift from a foreign state. Both the IRS and state attorneys-general have supervisory power over almost every non-profit and charitable trust and foundation in the United States, and receive distinct tax subsidies to boot, does not render their gifts acts of state. Similarly, the President himself have ex officio powers of appointment or trustee designation powers with regard to multiple U.S. charitable trusts (and honorary posts in a variety of organizations including the Boy Scouts of America).
The prize is not administered in the best interests of Norway. It is administered according to the private formative document with input from private citizens internationally. One is not an agent or representative of a government merely because someone who is a government official appoints you. Agency implies a fiduciary duty to act in the best interest in the principal, a duty not owed by Noble committee members to the government of Norway. You are a representative if your acts have sovereign authority and are on behalf of Norway, rather than someone else.
Examples of government appointees who are not representatives of the government in U.S. law include creditor’s committees in bankruptcy, court appointed receivers, court appointed personal representatives and executors of decedent’s estates, court appointed guardians and conservators, and court appointed advocates in appellate litigation (a tradition that dates as far back as the Amistad case and is as recent as oral arguments heard this month before the U.S. Supreme Court in a copyright case). The examples of executors and conservators are particularly relevant in the Noble prize case.
Similarly, while Olympic athletes compete under our nation’s flag, I do not believe that they would be considered representatives of the United States in the sense meant by this clause of the constitution.
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October 9, 2009, 7:55 pmBill Johnson says:
I’m sorry, who gives a ****? It’s not like it’s a meaningful award, like the Heisman or high school valedictorian...
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October 9, 2009, 7:56 pmzuch says:
Prof. Volokh:
The Nobel Foundation is not a foreign state nor an agent of such. They could specify [assuming no restrictions in the will] that the recipient (or the committee determining the recipient) be determined by the Super Bowl winner, but that wouldn’t make them an NFL agent either (nor the NFL their agent). The prize money comes from this Foundation, and the means of selecting the recipient is dictated by this Foundation (and Nobel’s will establishing such).
Cheers,
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October 9, 2009, 8:28 pmzuch says:
Prof. Volokh:
The Nobel Peace Prize is not a gift.
Cheers,
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October 9, 2009, 8:30 pmThorley Winston says:
Question – if as others have suggested the prize money rightfully belongs to the US Treasury, what would be the potential legal penalties for Obama treating it as his personal income which he would be doing if he decided to donate it to a “charity”?
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October 9, 2009, 8:30 pmtvk says:
Why doesn’t this provision allow Obama to keep the prize (though not the money)?
“The Congress consents to the accepting, retaining, and wearing by an employee of a decoration . . . awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.” 5 USC 7342.
The Nobel Peace Prize is presumably award for outstanding performance in the pursuit of peace. Whether Obama has met the standard is debatable, but not the point here.
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October 9, 2009, 8:40 pmRPT says:
“Hans Bader:
Given the notorious politicization of the Justice Department under Obama, his turning a blind eye to wrongdoing by political allies (such as voter intimidation by the racist, antisemitic Black Panther Party), and his firing of inspector generals like Gerald Walpin who uncover corruption and misuse of federal funds by Obama supporters (as well as the Bush Administration’s disgraceful “torture memos”), I would argue that presidents, like politicians in general, are less trustworthy than doctors, and ought to be subject to more scrutiny about the gifts they receive, not less.”
Orly Taitz indeed, writing under the pseudonym Hans Bader, hits a new low. Call Mr. Von Spakovsky if you want to talk about politicization of the DOJ. Gerald Walpin? Wow.
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October 9, 2009, 8:43 pmShelbyC says:
Jokes aside about how it is in this case, I’m pretty sure it is.
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October 9, 2009, 8:47 pmGene Madison says:
Problem comes down to bribery and fraud at the expense of the U.S. Economy. The bailout money seems to have saved this “Sovereign Wealth Fund” which hold investments for Saudi Arabia, China, and Norway. Norwegian Government Pension Fund has approximately $400 Billion invested in the banks and derivatives, and seem to be the only ones that profitted. Guess they cashed out just in time. So a couple Million is a pretty good deal to save pensions, eh?
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October 9, 2009, 8:48 pmzuch says:
ShelbyC:
Jokes aside about how it is in this case, I’m pretty sure it is.
How is it a gift? Can you cite, for instance, from tax law cases, any cases that deem awards and prizes to be “gifts” under U.S. tax law?
Cheers,
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October 9, 2009, 9:00 pmzuch says:
Gene Madison:
Assuming arguendo that everything else you say is true (which is highly doubtful), Norway doesn’t pay the prize. And didn’t the bailout money come from the Dubya maladministration?
Cheers,
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October 9, 2009, 9:04 pmGene Madison says:
How is it a gift? Can you cite, for instance, from tax law cases, any cases that deem awards and prizes to be “gifts” under U.S. tax law?Cheers,
When a person receives something of value at no cost to them, it is a gift. But in this case, it very well could be lottery winnings. Constitution isn’t interpreted according to tax law definitions. If it were just recognition, then not a gift so much. Though beware.. for Republics are often destroyed due to foreign influence upon political factions...
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October 9, 2009, 9:10 pmloki13 says:
Personally, I think that Obama would have been better off just angering everybody by giving a Bush-esque press conference after the award was announced.
“Hey, y’all, what has two thumbs, a smile, pisses off Glenn Beck, and has a Nobel Prize?”
(pointing to himself) “THIS GUY!”
“Oh yeah, suck it Trebeck.”
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October 9, 2009, 9:12 pmbyomtov says:
Hans Bader,
Get a napkin, and wipe that spittle off your chin.
Meanwhile, I’d love to see Congress take up a bill authorizing Obama to accept the prize. The Republican “nays” would be delightful.
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October 9, 2009, 9:19 pmErnst Blofeld says:
Isn’t this at least a partial reason why the law was passed in the first place? The Nobel committee is fairly transparently bestowing an honor in an effort to influence current and future policy in Iran, Afghanistan, and the Middle East, perhaps by exploiting Obama’s vanity, and any future president might keep an eye on what the Norwegian parliamentarians like in order to receive the honor himself. It as also fairly transparently an attempt, albeit clumsy, to influence US politics.
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October 9, 2009, 9:27 pmmls says:
If the award is being given to Obama for or on account of his official position, would that make it an illegal gratuity?
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October 9, 2009, 9:35 pmloki13 says:
Doubtful. He was tipped far in excess of 20%, and as anyone who has ever worked in the service industry here can tell you, Europeans are notoriously bad tippers. You’ll have to try another crazy theory!
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October 9, 2009, 9:50 pmPerseus says:
It is also a petty swipe at the administration of Obama’s predecessor, George W. Bush, who is more deserving of the prize.
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October 9, 2009, 10:04 pmeyesay says:
Tax law says that charitable deductions are limited to 50% of income. The presidential salary is $400,000, and the prize is reportedly about $1.4 million, so unless the Obamas have $1 million in other income (interest, dividends, royalties, rental, etc.), $1.4 million in charitable gifts would not be fully deductible.
But, fortunately for Mr. and Mrs. Obama, there is a way out. The IRS says that if the money is transferred to charity (or a government unit) before it is received, and certain other conditions are met, it’s non-taxable.
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October 9, 2009, 10:51 pmSagar says:
I am glad that there will be an addition of $1.4 million to our 4th quarter GDP.
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October 9, 2009, 11:09 pmTom says:
Did you question the position O has at the UN now? That is a major story, this one is a who cares. Amazing how we are always misdirected.
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October 9, 2009, 11:11 pmRichardS says:
I agree that 5 USC 7342 would seem to allow President Obama to keep the Prize, which I think falls under the definition of a decoration. But who exactly is the “employing agency” for the President that is required to also give its approval to allow the President to keep and wear the decoration? While the statute expressly defines the President as an employee, the definition of “employing agency” says the employing agency for all executive branch employees is “the department, agency, office, or other entity in which an employee is employed” (Section (a)(6)(D)) Does that mean the Office of the President makes that decision?
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October 9, 2009, 11:13 pmRich Rostrom says:
I think the previous awards to T. Roosevelt and Wilson are dispositive. Whether they earned their awards and Obama has not is a subjective matter, of no legal import.
However — I question whether this award can truly be separated from the Norwegian government. The government appoints the committee which selects the recipient. If there was a Saud Peace Prize, awarded by a committee appointed by the king of Saudi Arabia, would anyone seriously say that it was not a function of the Saudi government?
A sock puppet conceals the hand under it, but is still under its control.
I note that since 2005, the Norwegian government has been headed by the Labor Party, in coalition with the Socialist Left Party and the Center Party. That could explain the awards to Gore and Obama. OTOH the award to Jimmy Carter in 2002 came under a Christian Democrat/Conservative government.
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October 9, 2009, 11:21 pmGene Madison says:
If a citizen from a foreign nation wishes to give a gift, they would be a member of that nation. If a corporation through the laws of a foreign nation wishes to give a gift, they are members of the nation they were incorporated in.
There is also a restriction by the Constitution from the president receiving any other compensation (besides salary) from the United States, or any one of them. That means, while holding office of President, accepting money from corporations or individual citizens of any state is in direct violation of the law.
If we were governed by the rule of law, rather than the ‘Royal’ or ‘Sovereign’ Precedent used by the monarchs of Britain throughout it’s existance, then we’d have a clear line, without a whole lot of gray.
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October 9, 2009, 11:42 pmAST says:
I seem to recall a brouhaha when the Clintons took some “gifts” out of the White House when they left that were considered gifts to the American people. Even if they thought they were personal gifts, they’re not supposed to treat them that way.
Mickey Kaus is right. Obama should decline the “honor.” It would show more class than accepting it and joining Arafat and Carter as mistakes. He should tell them, “IF we succeed in keeping Iran from building nuclear weapons and developing a threat to Europe, Sunni states and Israel, I’d be honored to be considered after I leave office.”
I suppose he could accept the prize in the name of the United States, but I don’t think the committee would be too happy about that, either.
They give prizes in science way after the discoveries or inventions being honored. Why does this one have to be on the day the President announced increased troops to Afghanistan? Accepting it would be gauche, egotistical and just another thing he’ll have to distract him from his job for a good long time.
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October 10, 2009, 12:00 amRicardo says:
The Norwegian Nobel Committee awards the Nobel Peace Prize. Its members are mostly politicians who are chosen by the Norwegian Parliament. Moreover, they are even chosen in such a way to ensure the political parties of Norway are proportionally represented on the Committee. Finally, the Prize is awarded in the presence of the King of Norway.
On the other hand, it was Nobel’s intent in granting the Norwegian Parliament the power to set up the Committee to depoliticize the award. At the time, Sweden was responsible for foreign policy under the Kingdom so giving Norway say in who gets the prize seems to be a way of removing foreign policy considerations from the award. Moreover, the Committee is nominally independent from the government as sitting parliamentarians are not eligible to sit in the Committee. Finally, the prize money comes (at least in part) from the Nobel Foundation rather than from the government of Norway.
It seems like a gray area between a state and non-state award. On net though, it seems equivalent to a U.S. politician accepting an honorary doctorate from a foreign government-run university. Not much of a big deal. Plus, with a Democrat-controlled Congress, I doubt the award will be blocked.
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October 10, 2009, 12:02 amgullyborg says:
Why are people worrying about the taxes? With experts like Geithner and Rangle there to guide Obama, how can he go wrong?
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October 10, 2009, 12:13 amGordon Langston says:
This seems a little bizarre. How can these Peace Prizes deserve this sort of secrecy....50 years.
Nomination for the Nobel Peace Prize
Every year, the Norwegian Nobel Committee sends out thousands of letters inviting qualified people to submit their nominations for the Nobel Peace Prize. The names of the nominees and other information about the nominations cannot be revealed until 50 years later.
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October 10, 2009, 1:01 amnick says:
Assuming it’s unconstitutional, how can the provision be enforced?
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October 10, 2009, 1:32 amGene Madison says:
First, was the president nominated and later chosen to receive the Nobel Peace Prize because of his position? Is it his duty as President of the United States, to promote peace? Promote international cooperation? The nomination would have been submitted by Feb 01, 2009. It’s hardly an extraordinary accomplishment, a requirement for award, to talk about talking. Surely there is someone out there who has committed their lives to a worthy cause. There isn’t one promise I can think of that he has accomplished since taking office.
It’s like paying the plumber for talking about how he plans on fixing the leak as if the work were done. In 1939, Hitler was nominated, and exactly how would the process be viewed today if he had won the prize?
I think it’s bad policy for any foreign nation or anyone really to offer emoluments to anyone for doing their job.
Incentivize duty or responsibility, and you make the action of accomplishment less noble.
This seems to be a personal award, for a man whose office is public. He didn’t get the award for his accomplishments as an individual, he received it for the office he was elected to.
Do the American people not pay him enough that his pay needs to be supplemented from foreign interests? I would rather decline due to the conflict of interest.
I wonder what will be next. Perhaps we’ll crown him as king for talking about withdrawing troops from Afghanistan.
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October 10, 2009, 2:14 ampffft says:
Let’s say the President can’t keep the $1.4 million under 5 U.S.C. 7342. I don’t see how he possibly could under the statute. Even if the “decoration” provision applied to this situation, that would only apply to the Prize itself (the gold medal). The cash is not a “decoration”. That strains credulity. So let’s say he can’t keep the cash. But he’s donating it to charity. But it’s not his, because it belongs to the United States. How can he donate something that is not his?
Is this a crime?
Is it actionable?
Is it a way to get the Emolument Clause enforced in this matter?
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October 10, 2009, 2:38 amCan't find a good name says:
I found a relevant regulation in the general “gifts to government employees” regulations, as opposed to gifts from foreign states.
5 C.F.R. § 2635.204 says:
I note that U.S. government employees have won Nobel Prizes in the fields of Physics, Chemistry, and Physiology or Medicine within the last 25 years.
Thus, it looks to me as though Obama can accept the Nobel Prize and the money as long as the Office of Government Ethics (the relevant ethics agency for him, as he is an executive branch officer) approves it in writing. And the OGE would act properly to approve the acceptance, given that the Nobel Peace Prize is awarded on a regular basis, is funded to ensure its continuation on a regular basis, and is made pursuant to written standards (vague standards, but standards nonetheless, established in the will of Alfred Nobel), and that another Nobel Prize is specifically identified in the regulations as being allowed for a government employee to accept.
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October 10, 2009, 2:46 amUrsus Maritimus says:
Nero at the Olympics?
Gaius Julius refusing the crown three times?
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October 10, 2009, 2:48 amii says:
Call me crazy, but it seems clear that something is required either of Congress, the Government Ethics Office, or President Obama himself, for this to be constitutional. But, am I really the only one who thinks none of these thing will be done, and that Obama will just receive the money and donate it as if nothing is required of anybody? Time will tell, but let’s be realistic here. The man will violate the Constitution and get away with it.
I’m not convinced that Hillary Clinton did not get away with violating the Emoluments Clause.
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October 10, 2009, 3:02 amCan't find a good name says:
eyesay: The Obamas reported $2.6 million in adjusted gross income in 2008.
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October 10, 2009, 3:03 amCan't find a good name says:
Gene Madison: “There is also a restriction by the Constitution from the president receiving any other compensation (besides salary) from the United States, or any one of them. That means, while holding office of President, accepting money from corporations or individual citizens of any state is in direct violation of the law.”
That is a non sequitur. Obama cannot receive any payment beyond his salary from the U.S. government during his term of office. Nor can he receive any payment during his term from, say, the government of Illinois or any other state. But individuals and corporations are not “the United States” nor are they any of the United States.
Prohibitions on the president, or other government officials, receiving gifts from individuals or corporations are matters of statute and regulation, but they are not implicated by this provision of the Constitution.
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October 10, 2009, 3:11 amHarryPrimate says:
We have already had two sitting Presidents accept this award, so a precedent has been set. Both Teddy Roosevelt and Woodrow Wilson accepted Nobel Peace Prizes while still in office. Of course they had both accomplished something as opposed to just talking about it.
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October 10, 2009, 4:29 amJoe says:
One solution for the money issue is to have the Nobel committee write the check to another person or organization entirely so it never passes his hands. Obama could erase some of the criticism that the prize is based on what he might do (rather than what he has done) by actually directing that the money be given to a worthy peace promoting enterprise. To make it even more delicious, he could pick a cause that the Norwegians find particularly distasteful (though I can’t imagine what it would be.)
Failing that, I’m a peaceful guy; I could dispose of that prize money in an appropriate way. Perhaps it could pay for my legal defense when I promote items on my obscure blog without telling anyone I got them for free.
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October 10, 2009, 5:31 amGene Madison says:
This country is either governed by the rule of law, or governed by
RoyalPrecedent. Since the constitution is the supreme law of the land & rules over all laws, precedent can never be supreme.Quote
October 10, 2009, 5:54 amPorkchop says:
According to the website of the Theodore Roosevelt Association, Roosevelt delayed accepting the money and the prize until after he left office. His proposed disposition, described in an earlier letter:
http://www.theodoreroosevelt.org/life/nobelportsmouth.htm
He is said to have told his children that accepting the money would be akin to “taking money for saving a drowning man.”
His intended foundation did not work out, and pursuant to a resolution of Congress the money was returned to him in 1918. He then contributed all of it to a number of war relief projects, and reported that to Congress.
The medal itself is on display in the Roosevelt Room in the White House, which is not part of the normal public tour. I had the opportunity for a private tour by a staffer some years ago and saw the medal there. It’s not huge, but it is a nice hunk o’ gold.
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October 10, 2009, 7:25 amRyan Waxx says:
Simple answer? No.
If the peace prize committee were actual representatives of Norway, we should have invaded the country long ago and converted it into parking space.
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October 10, 2009, 7:42 amMN says:
I did hear that Mr. Obama will be donating the money to charity, I wonder if he would like to implement his new taxing scheme which reduces the deductibility of charitable donations. I think it would be an excellent example of leadership for him to pay taxes on the money just as he is asking others to do.
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October 10, 2009, 9:26 amE Vattel says:
True, but your forgetting he’s not the President so its OK.
The term natural-born citizen refers to a status you must attain at the time you are born.
If you are not a natural-born citizen at birth, you’ll never be one.
Natural-born citizens are those born in the country, of parents who are citizens of that country. Anyone who has dual citizenship at birth is by definition NOT a Natural Born Citizen.
The founding fathers were adamant that for the position of President and the immediate stand-in there must be no hint of split allegiance to a foreign government or crown by virtue of ones birth. The fact that Obama was a full Kenyan/UK citizenship/subject at birth proves he is not the President of the United States and never can be.
Simply put, the 44th President of the United States has yet to be sworn in.
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October 10, 2009, 9:35 amEli Rabett says:
Having heard the pleasant noise of Republican heads popping yesterday, Eli eagerly awaits Obama’s donating the money to ACORN. (Remote Area Medical might be an excellent choice, but ACORN would be more....amusing)
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October 10, 2009, 10:08 amEvilNonGenius says:
He should donate it to an insane asylum, in honor of Glen Beck.
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October 10, 2009, 10:17 amChrisTS says:
Wouldn’t he simply pay them out of the prize money? In which case, the charitable gift would be reduced.
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October 10, 2009, 11:46 amGene Madison says:
Can we just change the name of the award to the “Nobel War Prize”? or perhaps “Nobel Unpeace Prize”? or even “Nobel Authorized Use of Military Force Prize”? The political ideology is, take advantage of what you can, when you can. (I’m sure it’s just coincidence that the same ideology applies to rapists, bankers, and most of the people spending time in prison as well.) I’m actually surprised there aren’t more world leaders calling for the United States to end the war. Guess we’ve finally reached a point where we all benefit one way or the other. Global Economics = Alignment of political interests of the worlds stronger nations in order to oppress the weaker.
And to comment on the “United States, or any of them”... People are members of an established state, and that state is a member of a Union of States. The US government was setup to govern the states, in doing so, the people within those states are subject to the limited jurisdiction of the federal government when engaging in state to state commerce. When defending from invasion, the state(s) are being defended, which in effect defends the people of such a state.
IMO, the primary reason why people have a hard time interpreting the constitution, is because the federal government is exercising powers it was never delegated, and continues due to precedent. Judicial power is not legislative. It is suppose to be the referee that calls foul when they legislate outside of their jurisdiction.
And though most believe the Supreme Court must be presented with a case in order to declare laws unconstitutional, if they took their oath of office seriously, then it is their duty to exercise their power in defense of & support of the constitution. As long as that exercise of power is valid to all intents and purposes established by the preamble, then immediate action is necessary as well as proper.
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October 10, 2009, 12:11 pmrpt says:
Orly Taitz visits the VC under her second pseudonym; E Vattel.
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October 10, 2009, 12:15 pmLarry Sheldon says:
What evidence is there that The President is remotely interested in law, Constitution, or morals except as they might be convenient to His Purposes?
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October 10, 2009, 12:20 pmThe Postliberal says:
The main thing to understand about the Nobel award to Obama is that it has the appearance of a bribe, a valuable gift that renders the recipient susceptible to influence. In this case the valuable part of the gift isn’t the money but the honor. In effect it’s still an attempt to bribe the President. Any American citizen has the right to demand that the President refuse to accept a bribe,especially one offered publicly. Obama should decline the prize, categorically,not merely as personally undeserved but as improper for an elected official in his position, lest he be seen as beholden to parties other than the U.S. Constitution and voters. Unless he declines the prize, his conduct of U.S. policy risks being viewed as compromised by the expectation that he live up to his Oslo-awarded title. We can’t have a President in that position. We should publicly acknowledge the Nobel Prize for the bribe it is and demand that this elected official do so as well.
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October 10, 2009, 1:20 pmSteven says:
My disclaimer: I am a lawyer. My comment: This discussion is monumentally pointless. How many angels can dance on the head of a pin? Who cares? Is an Act of Congress required? Who cares? Do something useful, rake your lawn, wash the windows, anything. It will be time well spent. Someone may thank you for doing it.
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October 10, 2009, 1:36 pmLarry Sheldon says:
Steven, I am not a lawyer, which may explain why I can sometimes see the obvious.
Like, if I’m going to rake the lawn, I’m going to have to move over to the Global Warming thread, since it is freezing (AKA 32 degrees F) and there about 4 inches of snow on the lawn.
Other obviousness previously mentioned.
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October 10, 2009, 1:42 pmnavarro says:
i regard this as an award to the american people for not voting mccain/palin into office with obama as our proxy. on that basis i graciously accept the award.
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October 10, 2009, 2:00 pmLarry Sheldon says:
I recommend immediately enrolling in Arabic and Islam religious instruction, in case they let you live.
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October 10, 2009, 2:08 pmBitterandResentful says:
but wouldn’t that be more bureaucracy, more process and very bad diplomacy. The Right or phony Independents read into the Laws whenever it satisfies their selfish needs. Enough!
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October 10, 2009, 2:22 pmLitigator London says:
The Nobel Prizes were established by the will of a private person who was, as it happens, the inventor of dynamite. The committees which award the prizes are fulfilling a will trust and they are private persons acting in a private capacity.
The power to nominate persons to the Peace Prize Committee is indeed vested in the Norwegian Parliament. A power of appointment under a will trust is often vested in one or more public office holders, eg, in the UK, often the Lord Chancellor, the Archbishop of Canterbury, the Public Trustee, but it is fairly elementary trust law that the power of appointment does not mean that the appointees act in anything other than a private capacity and their decisions are certainly not acts of the state.
The prize is therefore not one from a prince, King or foreign state but from a private foundation and therefore would seem to fall outwith the constitutional prohibition.
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October 10, 2009, 2:36 pmHans Bader says:
Litigator London’s argument that the gift is from a private foundation misses the mark.
Even putting aside the clear role of the Norwegian Parliament, a foreign government, in the bestowing the prize, far less clearly “governmental” conduct has been held subject to constitutional limits: the U.S. Supreme Court — which interprets the U.S. Constitution — once held that a trustee appointed by a state court to fulfill a private will constituted government action subject to constitutional limits in a case involving a Philadelphia school and will.
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October 10, 2009, 2:42 pmHans Bader says:
The award of the Nobel is the action of a foreign government.
Pennsylvania v. Board of Trusts, 353 U.S. 230 (1957), illustrates the fallacy of Litigator London’s argument that the award of the Nobel by a committee selected by Norway’s Parliament is private, not governmental.
Litigator London’s argument that the gift is from a private foundation misses the mark.
Even putting aside the clear role of the Norwegian Parliament, a foreign government, in the bestowing the prize, far less clearly “governmental” conduct has been held subject to constitutional limits: the U.S. Supreme Court — which interprets the U.S. Constitution — once held that a trustee appointed by a state court to fulfill a private will constituted government action subject to constitutional limits in a case involving a Philadelphia school and will. See Pennsylvania v. Board of Trusts, 353 U.S. 230 (1957) (so holding).
The trustee was not a government official. By contrast, the Nobel committee includes members of Norway’s Parliament, high-ranking officials of a (foreign) government.
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October 10, 2009, 2:49 pmMark Field says:
Madison didn’t agree. He famously changed his opinion of the constitutionality of the Bank precisely because of the precedent:
“It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though on the original question held [by Madison] to be unconstitutional, received [Madison’s presidential] signature in the year 1817.” Madison to Jared Ingersoll, June 25, 1831.
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October 10, 2009, 3:08 pmmikeyes says:
According Wikipedia , Norway was not a country when Nobel asked the Norwegian Parliament to choose the Peace Prize Committee. I’m not sure how this effects the interesting argument that is going on here, but at the inception of the Prize the selectors were not the governing body of a sovereign country. Instead they were like a state legislature. Maybe it was his way of tweaking the Swedes.
President Obama will receive the money, the gold(ish) medal, and a diploma. Do you think he will at least be able to keep the diploma?
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October 10, 2009, 4:55 pmGene Madison says:
Not exactly. Madison held that establishing a National Bank of the United States was unconstitutional, but a bank could be established withing the district of columbia, which they have power to pass any laws whatsoever, and territories.
One could also be established in order to carry out one of the enumerated powers under Section 8, Article I.
Constitutionality requires that the power is restricted to the Jurisdiction of the federal government, and the interpretation must be valid to the intents and purposes established by the Preamble.
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October 10, 2009, 5:18 pmmikeyes says:
Here is the pertinent part of Nobel’s will:
“The whole of my remaining realizable estate shall be dealt with in the following way: the capital, invested in safe securities by my executors, shall constitute a fund, the interest on which shall be annually distributed in the form of prizes to those who, during the preceding year, shall have conferred the greatest benefit on mankind. The said interest shall be divided into five equal parts, which shall be apportioned as follows: one part to the person who shall have made the most important discovery or invention within the field of physics; one part to the person who shall have made the most important chemical discovery or improvement; one part to the person who shall have made the most important discovery within the domain of physiology or medicine; one part to the person who shall have produced in the field of literature the most outstanding work in an ideal direction; and one part to the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses. The prizes for physics and chemistry shall be awarded by the Swedish Academy of Sciences; that for physiology or medical works by the Karolinska Institute in Stockholm; that for literature by the Academy in Stockholm, and that for champions of peace by a committee of five persons to be elected by the Norwegian Storting. It is my express wish that in awarding the prizes no consideration be given to the nationality of the candidates, but that the most worthy shall receive the prize, whether he be Scandinavian or not.”
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October 10, 2009, 5:19 pmOren says:
This statement makes no sense. Precedent is about saying what the Constitution, as supreme law of the land, commands. It cannot be “supreme” over the constitution because it does not purport to replace it.
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October 10, 2009, 6:02 pmCaptain Joe says:
I guess the Constitution doesn’t mean anything anymore in the eyes of Demonrats, at least.
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October 10, 2009, 6:38 pmMark Field says:
I don’t know where you’re getting this, but it’s wrong. Madison originally took the position that the Bank was unconstitutional, period. He later changed his mind on the basis of precedent, and expressly said that it was precedent which caused him to change his mind.
In any case, establishing a bank in DC is irrelevant to the actual BUS, which was headquartered in Philadelphia and operated nationwide.
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October 10, 2009, 6:52 pmGene Madison says:
The true nature of law escapes most lawyers. Who cares? Those sworn to support the constitution, and defend it against all enemies foreign or domestic. As for the ‘chores’ — Sorry, I do care about the rule of law, care about my country, and care about Government expanding it’s jurisdiction to defend honor, overthrow foreign leaders, and putting the lives of men and women at risk because of the nobility of their missionary work... Praise Democracy... We are not worthy to receive you, but only say the word, and I shall be healed.
Everyday, political factions become more and more religious, passing legislation restricting people liberty for the purpose of “Saving them from themselves.” With liberty comes responsibility, without it, Liberty is an illusion. When a person cannot decide for themselves, when they lack the knowledge to make the right choice, then parents are failing in their duties to prepare their children for adulthood.
But if they’re only hurting themselves, they need the lesson to make them understand why. Take away experience, and you lose the single most important learning tool any person will ever have.
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October 10, 2009, 7:26 pmGene Madison says:
Mind if I call Bullsh*t?
The 1st B.U.S. that Madison veto’d wasn’t on the ground that “Establishment of Banks” was unconstitutional, but the bill as a whole, not on establishment in general.
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October 10, 2009, 8:32 pmMark Field says:
Call it whatever you like. Your argument about Madison’s original position, even if true, is irrelevant to the issue you originally raised about precedent.
Madison originally took the view that the first Bank was unconstitutional. He later changed his mind. That change was NOT because Congress fixed his original objection or avoided the problem somehow when it created the second Bank, it was because he accepted the precedent of the first Bank. And he expressly said that precedent was his reason.
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October 10, 2009, 9:45 pmGene Madison says:
I’ve read a great deal of Madison’s writings. The letter I included in the last post disputes your claim. He objected to the constitutionality of such a bank, in 1791, As an ands, rather than a means to an end. Though Washington signed it, it expired in 1811 under Madison. The bill to recharter failed. Madison did, however, revive it in the form of the Second bank of the United States.
Ultimately, Government needed to borrow money to help pay for the war, so the bank was established as a means to that delegated power to borrow money on the credit of the US.
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October 10, 2009, 10:34 pmMark Field says:
The letter does no such thing. It expressly states that precedent, not some other reason, was responsible for Madison’s change of mind. He even uses the word “precedent” 3 times.
You don’t have to agree with Madison about the effect of precedent, but it’s pointless to deny that he considered precedent, properly defined, a legitimate source of authority.
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October 10, 2009, 11:45 pmAnthony says:
I had the same thought as ohwilleke: the Nobel Prize, and its money, are the gift of a private foundation founded by a private individual, who asked a government body to perform a part of the process. Legally, this should be similar to money being awarded by a foreign court in a case involving private funds.
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October 11, 2009, 12:04 amGene Madison says:
Madison Said:
Ignoring Precedent put down for the rules of construction would certainly be foolish. Unfortunately, some Supreme Court Justices did just that to bring us to the new construction in place now. (Congress believes its powers are unlimited... I disagree.) The Rule of Law determines precedents. But we can’t have precedents determining the rule of law. (New Construction introduces uncertainty and isntability in the constitution and the laws themselves. as stated previously.
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October 11, 2009, 12:10 amRicardo says:
In order, the above sentences are true, false, false. Nice try, though.
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October 11, 2009, 3:53 amCJColucci says:
If Bush had won (yeah, I know, cold day in hell), this would absolutely have been an issue and the media would have said it was a pattern of Bush’s utter disregard for the Constitution by merely accepting the award.
How does one respond to the charge of hypothetical hypocrisy? I have as much right — and, I think, more basis* — to say “no, that wouldn’t happen” and call bullshit as someone has to assume that it would and call hypocrite.
* For example, it has happened before, twice, and no one raised a fuss then.
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October 11, 2009, 10:29 amSyd Henderson says:
Given the earlier wording of the clause, “Title” here refers to Title of Nobility.
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October 11, 2009, 12:32 pmBenjamin Davis says:
Good enough for Teddy and Woodrow, good enough for Barack. Let it rest you guys!
Best,
Ben
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October 13, 2009, 8:09 amRoss P says:
In cases like this he should be treated as any other citizen would, if he accomplishes something that someone thinks is grand and worth the Nobel Peace Prize, there’s no sense in being bitter or angry, everyone has their day.
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October 14, 2009, 2:00 amIs Obama’s Acceptance of the Nobel Constitutional? « Obi’s Sister says:
[...] founder of the Volokh Conspiracy and a real lawyer (he doesn’t just play one on TV) muddies the waters further, like any good lawyer will do. Just read it as a whole – it’s difficult to excerpt [...]
Is Obama’s Acceptance of the Nobel Constitutional? - Obis_Sister’s blog - RedState says:
[...] founder of the Volokh Conspiracy and a real lawyer (he doesn’t just play one on TV) muddies the waters further, like any good lawyer will do. Just read it as a whole — it’s difficult to excerpt without [...]
B-Rob says:
This has got to be the biggest collection of wignuts this side of a tea-baggers rally. Rotunda, for one, is a great ad why anyone interested in a REAL legal education shoudl steer clear of Chapman University. First, to distinguish Obama from TR and WW, they braniac pair say that Obama got it for future accomplishments and those old dead white guys got it for past achievements. But its funny that the actual Nobel committee acknowledgement said that he won the prize for PAST ACHIEVEMENTS.
Second, how can you say that taking the prize is “unconstitutional” and not mention the fraking statute? Was that just sloppiness or did they conveniently ignore a statute that would cut the nads off their theory? And are they REALLY saying that the statute itself is unconstitutional? Er, no. Because under no rational argument does it fall outside of Congress’ authority to create a statute governing the acceptance of prizes by government employees.
And you people who called it a “bribe”: OK, I’ll bite. Please identify the corrupt official act that the Nobel committee expects in exchange for the prize.
The anti-Obama derangement seems to know no boundaries.
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October 16, 2009, 6:46 pmLarry Sheldon says:
“This has got to be the biggest collection of wignuts this side of a tea-baggers rally”
It is amazing how fast you can determine that there is nothing worth reading if you are paying attention.
And if you are reading a lawyers blog, you best be paying attention.
What an idiot.
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October 16, 2009, 6:52 pmGene Madison says:
I believe the ‘past achievement’ were speeches. Heaven forbid if we start giving out Oscars for Political Speeches.
Bribes could be for one of many reasons. First, Norways retirement fund was Heavily invested in our financial sector when the economy began drying up. If they ever release the AIG records on where federal money was used, we’d see it went to nations who have “Sovereign Wealth Funds” — one of the few heavily invested in financial markets that appeared to show no loss.
Other is, Norway is heavily invested in Green Energy Technology. How great would it be for them to have a one up on that!
That’s just off the top of my head.
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October 16, 2009, 7:52 pmZuzu says:
Uh, did anyone bother to look up the enabling legislation, or even statement of intent, adopted by the Norwegian Storting in carrying out the provisions of Alfred Nobel’s will? Failing that, how about a quick Google through, you know, the actual Nobel Prize website:
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October 19, 2009, 2:04 pmGene Madison says:
Zuzu, what exactly is your point? I don’t believe Obama meets the primary requirement stipulated in the will.
Not that he doesn’t have to potential to do so, but let’s remember that the nominations were made earlier in the year, I believe it was by February 1st. Maybe it was January... Ultimately, I don’t see anything Obama has done by that time that qualifies him. Rhetoric is rhetoric. It’s a manipulation of peoples minds to believe what isn’t necessarily true. Did this work for you?
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October 22, 2009, 1:30 amrussell says:
You are mistaken in some of your facts. When Teddy Roosevelt accepted the prize, he not only proactively requested the consent of Congress. He set up a committee of members of Congress and the Supreme Court to determine whiche charities should benefit from the prize money. Kissinger also had the consent of Congress. It is not an act of Congress, but a simple up or down vote that occurs. I’ve been researching and cannot find any reference except a NY Times article saying Congress was pleased with Wilson’s award.
The second fallacy used is to define the Constitution by other laws. The truth is that laws are defined by the Constitution, and precedent.
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October 28, 2009, 6:26 pm