Two New OLC opinions; OLC Overrules 1993 Emoluments Clause Opinion

Two OLC opinions were published today, both quite recent, and both concerning bread-and-butter issues for that Office (note the capital “O,” from force of habit).

1.  Emoluments Clause.  It is hard to make the Emoluments Clause sound interesting or important, particularly because most people think an “emolument” is something you put on a rash.  But the Emoluments Clause has nothing to do with unguents, at least not in the quantities in which unguents are usually employed:  It forbids holders of any “Office of Profit or Trust” from accepting, without Congressional consent, “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. 

In an opinion released today, OLC held that a nongovernmental member of the Administrative Conference of the United States does not occupy an “Office of Profit or Trust” within the meaning of the Emoluments Clause, and in the process overruled this 1993 opinion, based on intervening OLC precedents.

As today’s opinion notes,

the text of the Clause . . . makes clear that it applies only to a specified class of persons—i.e., those who hold offices of profit or trust under the United States—and not to all positions in the United States government. Consistent with that textual limitation, our precedents since our [1993] opinion have endeavored to give substance to that category.

The 1993 opinion reflected a much more expansive view of the Clause. The cracks in its construction of the Clause began to show the following year, when then-AAG Walter Dellinger (himself the author of the 1993 opinion) advised that “not every member of an advisory committee necessarily occupies an ‘Office of Profit or Trust’ under the Clause.”  But the heavy lifting was done in this 2005 opinion, in which OLC (to use the words of today’s opinion), “based on an extensive historical analysis of the phrase ‘Office of Profit or Trust,’ . . . advised that the Clause did not apply” to positions on a “purely advisory” bioethics advisory council, reasoning that “to qualify as an office within the meaning of the Constitution, a position must “at least involve some exercise of governmental authority, and an advisory position does not.”  That was followed by a 2007 opinion by Your Correspondent, which, based on the 2005 bioethics opinion, held that members of an FBI advisory council were not subject to the Clause.

After reviewing the Office’s precedents, today’s opinion said that holding that nongovernmental positions on the advisory panel are not covered by the Clause “best accords with our Office’s now substantial precedents giving substance to the Emoluments Clause through a careful explication of its proper scope, so as to ensure that concerns about foreign corruption and influence are accounted for with respect to the types of ‘Office[s]’ that the Clause was meant to cover in identifying ‘Office[s] of Profit or Trust.’”

The opinion was signed on June 3; publishing it on June 16 is breakneck speed by historical standards.  I suspect that the Office’s leadership thought it was important to make its views known quickly so Congress could take action if it disagreed with the conclusion.

2. Tax Levy on Retirement Accounts. Next up, the Office held in this opinion that Thrift Savings Plan accounts (federal employees’ much-beloved 401(k) equivalents) are subject to federal tax levies under sections 6331 and 6334 of the Internal Revenue Code, despite the fact that another statute protect such accounts from “levy,” except as expressly provided in that statute. This may strike readers who are not professional proofreaders or sock inspectors as dull, but it’s an important subject that is near to the hearts of federal employees and the conclusion is potentially unpopular since it subjects retirement cash to tax levy. The opinion was signed on May 3, so in keeping with recent practice, its publication is quick by historical standards.

At the risk of oversimplifying a closely reasoned 12-page opinion on a dense subject, it sounds like OLC sided with the levy clause because the exemption did not begin with “notwithstanding” language (which usually signifies it knocks out everything to the contrary) and because construing the exemption clause to trump the levy clause would mean it is an implicit partial repeal of the levy clause, which is disfavored under ordinary maxims of construction. The levy clause, by contrast, did begin with “notwithstanding” and used exceptionally broad language (“no property or rights to property shall be exempt from levy” except as “specifically” provided).

The government do take a bite, don’t she?