Ilya Shapiro (Cato) has the scoop. An excerpt:
On April 29, Sir Jay Merchant was knighted by Ambassador Rudolf Bekink on behalf of Queen Beatrix of the Netherlands. Merchant is the “international relations adviser” in the Office of the Administrator of CMS, which is the agency’s highest executive office.
While this may seem like just a neat factoid for inside-the-Beltway water-cooler amusement, there’s actually a constitutional problem that precludes this gallant story from having a fairytale ending. Article I, Section 9, Clause 8 (the “Emoluments” or “Titles of Nobility” Clause) states:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
In other words, it’s illegal for someone holding a federal “office of profit or trust” to accept a knighthood or other noble title. And this isn’t some archaic provision that hasn’t been dusted off since knights wore suits of armor. Believe it or not — and nothing is unbelievable when it comes to Obamacare implementation — this isn’t the first time this issue has arisen. It’s not even the first time in the last decade!
A Justice Department memorandum by our own John Elwood, related to the “Emolument[s]” part of the clause, makes an appearance. Ilya’s view is that the acceptance of the knighthood is indeed a constitutional violation, unless Congress consents. “[D]espite the word ‘adviser’ in his title, Merchant is not just a member on a government advisory board …. [H]e was not given approval by Congress to be knighted, as required by Section 9, and there is no public mention of his having requested such approval.”