Is the Emoluments Clause Dead?

As appeared in the February 4, 2026 edition of the New York Law Journal

 

Is the Emoluments Clause Dead?

NYCLA’s President Richard Swanson and president-elect Ronald Minkoff offer some basic questions about the Emoluments Clause in light of the current administration.

2 minute read February 04, 2026, at 11:32 AM

By Richard P. Swanson & Ronald C. Minkoff

 

Recent high-level meetings between Saudi Crown Prince Mohammed bin Salman and President Donald Trump have caused us to ask some basic questions about the Emoluments Clause, which prohibits the acceptance of any “present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State,” without the consent of Congress. 

The president’s family businesses have many Saudi connections.  While there are arguments that these are purely private investments on an arms-length basis, the mix of personal and governmental raises issues about whether any of them constitutes a “present” or an “emolument.”
The Emoluments Clause has almost never been addressed in our country’s history, because there has never before been such a dramatic mixing of personal business and wealth with presidential office and foreign potentates.  But there are obvious issues. Why hasn’t there been more public outcry?

That in turn leads to the question of how one would actually go about trying to enforce the Emoluments Clause.  Has the Supreme Court conferred presidential immunity from it?  Is there anyone in the world who would have standing to sue under it?  Is the only remedy for its violation impeachment, and if so, doesn’t our history show that is no remedy at all?  How did the Framers originally intend that the clause be enforced?  Is the Emoluments Clause, seemingly important on its face, simply a dead letter?

We should be glad that these issues have never before have to have been raised, and we are sorry for the need to have to raise them now. 

 

Richard P. Swanson is president of New York County Lawyer’s Association. Ronald C. Minkoff is NYCLA’s president-elect. This commentary reflects the views of the authors. It has not been reviewed by NYCLA’s full board of directors and does not necessarily represent its views.

“Reprinted with permission from the February 4th edition of the New York Law Journal © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com