Constitutional Law
Nov. 18, 2009
President Obama's Nobel, Unconstitutional?
Erwin Chemerinsky of UC Irvine, School of Law says constitutional objections to President Obama's acceptance of the Nobel prize lacks basis.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
Conservatives continue to criticize President Obama being awarded the Nobel Peace Prize, now with some arguing that it is unconstitutional for him to accept it. For example, conservatives Ronald D. Rotunda and J. Peter Phan wrote an op-ed in the Washington Post, "An Unconstitutional Nobel," which has received great attention on blogs. Their contention is that President Obama accepting the Nobel prize would violate the clause of the Constitution that prohibits a person in office from accepting, without consent of Congress, "any present, Emolument, Office, or Title, or any kind whatever, from any King, Prince, or foreign State." The obvious flaw in this argument is that the Nobel Prize does not come from a "King, Prince, or foreign State." It is awarded by a private foundation, the Nobel Foundation, as set out in the will of Alfred Nobel who died in 1896. More specifically, the peace prize is chosen by the Norwegian Nobel Committee and is paid for out of funds left for this purpose by Alfred Nobel. Federal law, in 5 U.S.C. Section 7342(a)(2)(A), actually defines what is a "foreign government" and states that this must be a "national, state, local, and municipal government." The Nobel Foundation and the Nobel Committee are private entities and not in any way a part of Norwegian government or of any other national, state, local, or municipal government. The members of the Nobel Committee are selected by the Norwegian Parliament, the Norwegian Storting. But the fact that the committee's members are chosen by the government does not make the private organization a part of the government. Cases are clear that much more than this is required to transform a private entity into a part of the government. For example, the United States Supreme Court has held that the United States Olympic Committee is not a part of the government even though it was chartered by Congress, regulated by federal law, and partially federally funded. San Francisco Arts & Athletes, Inc. v. United States Olympic Commission, 483 U.S. 522 (1987). By contrast, the Supreme Court ruled that the National Railroad Passenger Corporation (Amtrak) is a part of the federal government because it was created by federal law, its members are appointed by the federal government, it is funded with federal money, and it exists to carry out government purposes. In other words, it takes much more than appointment of members to transform a private entity into a part of the government. Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995). Moreover, even if the Nobel Prize were somehow perceived as coming from a foreign government, it still would be constitutional for President Obama to accept the award because Congress has consented to its receipt. Article I, Section 9 of the Constitution expressly allows receipt of otherwise impermissible gifts with congressional consent. The federal statute governing receipt of foreign gifts states that "Congress consents to the accepting by an employee of a gift of more than minimal value...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." 5 U.S.C. Section 7342(c)(1)(B). Refusing the Nobel Prize would surely be embarrassing to the President and the United States. Indeed, there is precedent for President Obama accepting the Nobel Peace Prize. Two prior Presidents - Theodore Roosevelt and Woodrow Wilson - were awarded and accepted this prize. No constitutional challenge was ever brought or even suggested. The Supreme Court often has said that "history places a gloss on the Constitution" and here the history supports the President being able to accept this award. Yet, some Republicans have looked for ways to use the Nobel Prize to criticize President Obama since the moment it was announced. Before President Obama even had the chance to publicly acknowledge the prestigious prize, Republican National Committee Chair Michael Steele was quick to disparage his receiving it. Now some conservatives are using the Constitution to argue against his receiving the award, despite the fact that President Obama has declared from the outset that its proceeds will be given to charity. It is a shame that the granting one of the world's most prestigious awards has become the subject of partisan attack. But while, of course, people can argue over the merits of the award, there is no basis for a constitutional objection to President Obama receiving it. Erwin Chemerinsky is Dean and Distinguished Professor of Law of the University of California, Irvine, School of Law.Sharon Liangn
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