Presidential Business: Can Congress Control Executive Ventures?

The Emoluments Clause gives Congress the authority to pass legislation to authorize or prohibit financial dealings between a foreign government and any federal official, including the president. While the Constitution does not define the relationship between a president and a family business, Congress can monitor this relationship and take specific action to correct any conflicts of interest. The legislative process is a federal law-making process that allows for the consideration and approval of laws by both Houses of Congress. Congress can also insulate execution from presidential control, and the president has a duty to enforce the laws passed by Congress.

Congress can prohibit financial dealings between foreign governments and the president

The Emoluments Clause gives Congress the authority to prohibit financial dealings between foreign governments and federal officials, including the president. The Clause, which is part of Article I and the powers of Congress, was written into the Constitution by unanimous vote at the Philadelphia Convention in 1787. It was intended to "exclude corruption and foreign influence".

Justice Department lawyers have ruled that the Clause applies not only to actions by foreign government agencies but also to enterprises that a foreign government runs, such as a public business corporation. Congress can thus pass specific legislation to prohibit financial dealings between foreign governments and the president.

While Congress has the authority to pass such legislation, it is not required to do so. The Constitution provides a system of checks and balances, but it is up to Congress to put those checks into motion. Congress has the power to investigate links between the president and a family business, and it can take specific action to correct any conflicts of interest over money. However, it would take an extreme situation for Congress to directly confront a president, especially one of the same party.

In the case of former President Donald Trump, there were concerns about his potential conflicts of interest due to his global business portfolio and international business relationships. Oversight Democrats demanded that Trump return millions of dollars he accepted from foreign governments without Congressional consent, in violation of the Constitution's Foreign Emoluments Clause. They also requested a full accounting of all payments received from foreign governments while in office.

To create a law prohibiting financial dealings between foreign governments and the president, a proposal would need to go through the legislative process. This includes seeking input from relevant departments and agencies, submitting the bill to the Government Accountability Office, and obtaining approval from both Houses of Congress.

The Emoluments Clause bars federal officeholders from receiving emoluments from foreign governments

The Emoluments Clause, as outlined in the US Constitution, is a provision that bars federal officeholders, including the president, from receiving emoluments from foreign governments. Emoluments, in this context, refer to any gifts, payments, or things of value from a foreign state, its rulers, officers, or representatives. The clause is designed to protect federal officeholders from "corrupting foreign influences" and to prevent foreign governments from influencing US policies through gifts or titles.

While the Emoluments Clause does not require presidential action, it does give Congress the authority to pass specific legislation authorising or prohibiting financial dealings between a foreign government and any federal official, including the president. This includes the receipt of medals or awards, such as President Obama's Nobel Peace Prize, and employment by a foreign government operation.

In modern times, the complex global business interests of some presidents, such as Donald Trump, have raised concerns about potential conflicts of interest and the applicability of the Emoluments Clause. Legal scholars and government transparency groups have warned that Trump's international business relationships, including investment money from Russia, China, and Germany, could violate the clause if he earns money from contracts with foreign governments.

To address these concerns, some have suggested that Trump place his business interests into an independently managed blind trust, a practice followed by previous presidents to avoid any appearance of profiting from the presidency. However, Trump has argued for a narrower interpretation of the Emoluments Clause, stating that it only includes benefits received by an officeholder in return for official action. This interpretation has been disputed in court, with appellate courts vacating decisions that adopted a broader definition of "emolument".

Congress must monitor the relationship between the president and their family business

The Constitution of the United States does not impose any restrictions on a president's private business ties. However, it is up to Congress to monitor the relationship between the president and their family business. The Emoluments Clause, a part of Article I and the powers of Congress, is the only enforcement mechanism. It grants Congress the authority to pass or prohibit financial dealings between a foreign government and any federal official, including the president. This clause was included to "exclude corruption and foreign influence", as explained by James Madison.

The General Accountability Office, a semi-independent branch of Congress, can investigate links to the use of government funds, but only Congress can take action to address conflicts of interest. Congress is unlikely to confront a president, especially if they are from the same party. The ultimate check, impeachment, has only been used twice in history and would likely only be attempted in the most egregious cases of business misconduct.

While the 1978 Ethics in Government Act requires high-ranking federal officials to disclose financial holdings and recuse themselves from conflicts of interest, this does not apply to the president, vice president, members of Congress, or federal judges. Nevertheless, every president since Lyndon Johnson has either sold off their investments or placed them in a blind trust to avoid the appearance of impropriety.

Given the absence of explicit constitutional restrictions on the president's business ties, the onus is on Congress to vigilantly oversee and address any potential conflicts of interest between the president and their family business. This includes enforcing the Emoluments Clause to prevent foreign influence and holding the president accountable for any unethical financial dealings.

The General Accountability Office can investigate links involving the use of government funds

The U.S. Government Accountability Office (GAO), also referred to as the "congressional watchdog", is an independent, non-partisan agency that works for Congress. The GAO was formed by the Budget and Accounting Act of 1921 to investigate all matters related to the use of public funds.

The GAO provides Congress, the heads of executive agencies, and the public with fact-based, non-partisan information that can be used to improve government and save taxpayers billions of dollars. It examines how taxpayer dollars are spent and offers recommendations to Congress and federal agencies on how to improve efficiency and save money.

In the context of a president's side businesses, the GAO, as an independent arm of Congress, has the authority to investigate any links involving the use of government funds. This includes examining potential conflicts of interest and improper use of government money. For example, in the case of President-elect Donald J. Trump, there were concerns about his vast personal wealth, estimated at $3.7 billion, and his complex global business portfolio. Government transparency groups warned that Trump's international business relationships could create a potential conflict of interest.

While the GAO can investigate and provide information, only Congress has the authority to take specific corrective action if conflicts of interest or misuse of funds are identified. This could include passing legislation to prohibit financial dealings between the president and foreign governments, as authorized by the Emoluments Clause. However, it is important to note that Congress may be reluctant to directly confront a president, especially if they are from the same party.

The president must enforce laws passed by Congress

The US Constitution provides a system of checks and balances, with the power to create laws vested in Congress, and the power to enforce them held by the President.

Article II, Section 3 of the Constitution, also known as the Faithful Execution Clause or the Take Care Clause, grants the President the authority to enforce laws passed by Congress. This clause is a source of presidential power, as it seemingly invests the office with broad enforcement authority. However, it also serves as a limitation on that power, as it underscores the President's duty to faithfully execute the laws of Congress and not disregard them.

The President is expected to "take care that the laws be faithfully executed". This means that the President must enforce the laws passed by Congress without regard to their own constitutional opinions. However, modern Presidents have occasionally ignored this duty by choosing not to enforce laws they deem unconstitutional. This practice has been compared to that of President Thomas Jefferson, who refused to enforce the Sedition Act because he believed it to be unconstitutional.

The President's duty to enforce the laws of Congress is not absolute, and there are mechanisms in place to hold the President accountable. For example, the Emoluments Clause in Section 1, Article 9 of the Constitution, prohibits federal officeholders, including the President, from receiving "emoluments" or compensation from foreign governments. Congress has the authority to pass specific legislation to authorize or prohibit financial dealings between a foreign government and any federal official, including the President.

Additionally, the General Accountability Office, an independent arm of Congress, has the power to investigate links between government funds and private business ties. While Congress has the authority to take specific action to correct any conflicts of interest over money, it is unlikely to directly confront a President, especially one from the same party. In extreme cases, impeachment proceedings could be initiated, but this is a seldom-used check on presidential power.

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