The Volokh Conspiracy

Rep. Ginny Brown-Waite, Rep. Cliff Stearns, and Rep. Ron Paul say “no,” and have sent a letter to the President asking him to request congressional consent, which they expect would be speedily given. They point to the example of President Theodore Roosevelt, who created  a committee, including the Chief Justice, to hold Roosevelt’s Nobel Peace Prize money in trust until he left office. After leaving office, Roosevelt asked for congressional consent to disburse the money to particular charities.

Article I, § 9, clause 8, of the Constitution states that “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.”

When Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC § 7342 (titled “Receipt and disposition of foreign gifts and decorations”) sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an “employee,” which includes “the President and the Vice President.”

A “foreign government” includes ” any agent or representative of any such [foreign] unit or such organization, while acting as such.” Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A “gift”  is “a tangible or intangible present (other than a decoration) .” A “decoration” includes a ” medal, badge, insignia, emblem, or award.”

By the statute, Congress explicitly consents to employee receipt of gifts of  “minimal value,” which is “means a retail value in the United States at the time of acceptance of $100 or less.” The statute authorizes the Administrator of General Services to make regulations to adjust “minimal value” to reflect changes in the Consumer Price Index, beginning in 1981, and reflecting CPI changes in the previous three years. Roughly speaking, $100 in 1978 is about $327 today.

A Peace Prize laureate receives a diploma, a 196-gram gold medal, and a large check (10 million Swedish crowns in 2007). The spot price of gold is $33 a gram, so the medal and the check obviously do not qualify for the “minimal value” exception. The diploma, as a piece of paper, could, although not if it were delivered with an expensive frame.

In the statute, Congress also formally “consents” to an employee receiving and keeping “a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.” The diploma and the medal both fit within the definition of “decoration.” As President, Obama is the head of his own “employing agency,” and therefore can approve his receipt of the medal and the diploma.

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.

 UPDATE: One disadvantage of VC’s new platform is that we can no longer award the coveted Green Border to especially good comments. Such honor is due to the commenter who brought up 5 C.F.R. sec. 2635.204(d). This is part of a regulation covering all gifts received by federal employees–not just gifts covered by the Constitution’s requirement of Congressional approval of gifts from foreign princes. The relevant portion of the regulation states that a federal employee can keep money from an achievement prize he is awarded, if the award is given regularly according to written standards. An example in the regulation is “an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.”

I don’t think this regulation helps Obama, although, as I explained above, the statute provides him with all he needs. First, keeping the prize money is allowed only if the prize is awarded “by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties or by an association or other organization the majority of whose members do not have such interests.” As has been widely discussed on the Internet, the Norwegian committee is obviously trying to influence U.S. foreign policy in a particular direction, and is making the award in part to further those interests. Second, the Nobel Prize for Medicine is awarded by an institute affiliated with a Swedish university hospital.  This is very different from the Peace Prize committee, which is picked by the Norwegian Parliament. Alternatively, if the Institute counts as a Swedish government agent because the Swedish government owns the hospital (I don’t know if they do), then the example in the regulation is wrong. A regulation cannot over-ride a statute or the Constitution. The Constitution requires congressional permission; the statute provides congressional permission in certain circumstances. The executive branch, by writing a regulation for itself, cannot expand the scope of the congressional permission.

Obama’s Nobel Prize brought to mind a vaguely remembered line in a novel by Thomas Bernhard (I think it was Wittgenstein’s Nephew but only because that is the only novel of his I remember reading) to the effect that nothing is as humiliating as being given a prize.  Bernhard was famously splenetic, as were the anti-heroes of his novels, but that line stuck in my head because it had the ring of truth.  Virtually everyone with any sense recognizes that Obama’s prize was an embarrassment, including Obama himself:

I do not feel that I deserve to be in the company of so many of the transformative figures who have been honored by this prize, men and women who’ve inspired me and inspired the entire world through their courageous pursuit of peace.

It’s one thing to be modest about one’s accomplishments, but few people who win prizes actually say they don’t deserve them.  In doing so, one casts doubt on the judgment of the prize committee and hence the merits of the other prize winners—which can only come across as a monstrous act of ingratitude—and diminishes oneself as well.  But Obama had no alternative; he could not claim that he deserved the prize because no one outside the prize committee believes that his accomplishments compare with those who have won it.  To accept the prize without qualification would come across as megalomania of the first order.  (Just imagine the ridicule and incomprehension that would have greeted any suggestion that Obama deserved the prize if it had been made by anyone prior to the announcement of the award.)

Obama did not reject the prize, of course.  His equivocal response—accepting the prize but declaring that he does not deserve to be in the company of the people who did deserve it, and treating it as a “call to action”—was bizarre in literal terms, but was politically a reasonable effort to squirm out of the dilemma imposed on him by the unworldly Norwegian politicians who put him to the choice of ingratitude or megalomania.

Few of us deserve prizes of any sort but we’re also spared the humiliation of having to announce our unworthiness to the world.  In Obama’s case, a further complication is that he is the president of the United States and, both in official and popular mythology, he’s a great and world-historical figure.  Just, by his own concession, not as great as Al Gore, Jimmy Carter, or Jody Williams, it turns out.

[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?

Unlike some, I don’t think the award of the Nobel Peace Prize to President Obama during his first year in office is all that shocking. For many years the Nobel Peace Prize has been given as much if not more for what the committee hopes recipients will accomplish as for what they’ve already done.  Just look at the list of past laureates, and note the years in which particular folks won.  The idea is that the prize will enhance the profile and prestige of the recipient, thereby boosting their efforts.  So it only makes sense that the Committee would award the prize to a President who has adopted a more conciliatory foreign policy, is seeking to reduce nuclear weapons stockpiles, is pursuing more aggressive action on climate change, etc.  These are policies the committee supports, and awarding the prize to Obama could, in their view, help ensure these policies are adopted and eventually succeed.

UPDATE: See also “Peace, dude,” by Maria Farrell at Crooked Timber.

With David Letterman somewhat distracted, I thought I’d solicit nominations for a top 10 list.  Here’s a few to start off:

Consolation prize for losing the Olympics

Who gives a rat’s you-know-what about Afghanistan, anyway

The Nobel Prizes in Physics, Chemistry, and Biology were already taken

“We couldn’t give an ‘un-prize’ to George W. Bush, and this was the next best thing”

For extraordinary diplomacy at the Gates-Crowley “Beer Summit”

UPDATE: “Obama?  I thought we were giving it to Osama“

The Norwegians wanted to honor one of their own, and the committee discovered that Obama was born in Oslo, Norway, the son of a Volvo factory worker.

ONE MORE: Norway needed to stimulate its prize industry, and Obama was willing to trade in an older, less efficient prize.

AND FROM THE COMMENTS: He was the 10th caller.