by aspenmayer | 2025-07-28 01:18:35+00:00
I'm not sure that it is a distinction with a difference in this specific case, because to my reading, the only folks who might not be covered publicly were those who were not officially, formally, regularly, or directly employed by military agencies, while doing the work alongside those who were so employed. Contractors, for example, may not be bound by the clause if they were not previously a reservist, a civilian DoD employee, an enlisted solider, or an officer in the armed forces. I am narrowly reading this to steelman their position, and it seems there might be some narrow wiggle room there, but I'm not sure if that's what they meant of if they're quibbling simply to have something to say. They might be technically right though, you be the judge:

https://dodsoco.ogc.osd.mil/Portals/102/emoluments_clause_ap... | https://web.archive.org/web/20250422185437/https://dodsoco.o...

> WHITE PAPER

> APPLICATION OF THE EMOLUMENTS CLAUSE TO DoD CIVILIAN EMPLOYEES AND MILITARY PERSONNEL

[The following paragraph is from the conclusion, and I think this might be Justice Department interpretations, as I don't think these issues have been tested before the Supreme Court. I am not a lawyer, nor do I speak for the military or Justice Department.]

> The Emoluments Clause to the Constitution applies to all Federal personnel. The Clause prohibits receipt of foreign gifts unless Congress consents such as in the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342. For retired military personnel, the Emoluments Clause continues to apply to them because they are subject to recall. The Justice Department opinions referred to in this paper construe the Emoluments Clause broadly. Specifically, the Justice Department construes the Clause to include not only gifts of travel and food, but also payments such as proportionate profit-sharing. To avoid an Emoluments Clause problem resulting in suspension of retired pay, retired military personnel should seek advance consent through their respective Service consistent with 37 U.S.C. § 908. It is prudent for retired military personnel to obtain advance approval even when there is uncertainty about the Clause’s applicability.

Perhaps there's some nuanced reading of "veterans" that includes folks who aren't armed services, although I think they would likely still fall under the purview of this clause, though I am curious about the factors at play here.

Edit: I think that if you are retired and fail to comply to the Gov's liking, all foreign payments are able to be counted against any military pension you may receive. I am less certain about how non-officers who have no pension are treated, or if they are still beholden to the clause after leaving the armed forces.

Here is additional material from the Commissioned Corps Personnel Manual:

https://dcp.psc.gov/ccmis/ccis/documents/CCPM26_9_1.pdf | https://web.archive.org/web/20250529163709/https://dcp.psc.g...

Found this slideshow that has this test:

https://www.oge.gov/web/OGE.nsf/0/A7C0E4D79F3F6D07852585B600... | https://web.archive.org/web/20250505113229/https://www.oge.g...

> 4-Part test to Determine if the Emoluments Clause Does Not Apply:

> 1. U.S. cannot be a member of a foreign state

> 2. Organization must carry out U.S. foreign policy

> 3. U.S. participates in governance of organization

> 4. Congress approved participation, no concern about divided loyalty