The Constitutionality of Cooperative International Law

Enforcement Activities Under the Emoluments Clause

The Emoluments Clause of the Constitution does not bar a proposed cooperative maritime counternarcotics operation, because the foreign naval personnel assisting U.S. law enforcement personnel 

would not hold an “ Office of Profit or Trust” under the United States.

October 7, 1996

M e m o r a n d u m O p in io n f o r t h e D e p u t y A s s i s t a n t A t t o r n e y G e n e r a l

C r i m i n a l D i v i s i o n

This memorandum responds to your request for our advice on certain legal 

issues raised by proposed bilateral executive agreements providing for cooperative 

maritime counterdrug enforcement activities in the Caribbean. In particular, you 

have asked whether the agreements would be impermissible under the Emoluments 

Clause, Article I, Section 9, Clause 8 of the Constitution, and this opinion is confined to that question.

I.

You have explained that the United States has had discussions with several 

European countries with interests in the Caribbean about possible executive agreements addressing maritime counterdrug enforcement activities in that region. You 

have further explained the general structure of the proposed cooperative 

“ shiprider” program that would be established under the terms of the agreements:

Each of the proposed agreements would have reciprocal provisions, 

under which, pursuant to standing or ad hoc permission, duly authorized state vessels of each party would be able to enter the territorial sea of the other to take drug law enforcement action against 

vessels not flying the flag of the coastal state, and against the persons on board them. Such law enforcement action could include 

enforcement of the coastal state’s laws, (e.g., by seizing the vessel 

and apprehending the persons, for subsequent turnover to the coastal state’s enforcement authorities) or enforcement of the seizing 

state’s laws (in which case the vessel and persons would be taken 

out of the coastal state’s territorial of sea for prosecution in a territory of the seizing state).1

1 M emorandum for Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, from Mark 

M. Richard, Deputy Assistant Attorney General, Criminal Division, Re: Request for Office o f Legal Counsel Views

on Proposed Reciprocal Maritime Counterdrug Agreements at 1 (May 31, 1996) (“ Criminal Division Submission” ).

346
As an example, you have provided the text of a draft agreement between the 

United States and the United Kingdom (acting on behalf of Bermuda, the British 

Virgin Islands, and other islands) concerning maritime counterdrug operations in 

the Caribbean (“ U.S.-U.K. Draft Agreement” or “ Agreement” ).2 The Agreement 

provides that the parties “ shall continue to cooperate in combatting illicit maritime 

drug traffic to the fullest extent possible.” 3 To that end, the parties agree to establish a joint law enforcement “ shiprider” program. In relevant part, the Agreement 

provides that the U.S. government may designate qualified Coast Guard officials 

to act as shipriders who may:

a. embark on British law enforcement vessels;

b. authorize the pursuit, by the British law enforcement vessels on 

which they are embarked, of suspect vessels and aircraft fleeing 

into United States waters;

c. authorize the British law enforcement vessels on which they are 

embarked to conduct counter-drug patrols in United States waters;

d. enforce the laws of the United States in United States waters, 

or seaward therefrom, in the exercise of the right of hot pursuit 

or otherwise in accordance with international law; and

e. authorize the British law enforcement vessels on which they are 

embarked to assist in the enforcement of the laws of the United 

States seaward of the territorial sea of Anguilla, Bermuda, the Cayman Islands, Montserrat, and Turks and Caicos.4

The Agreement further provides that crew members of the British law enforcement vessel may assist in the search and seizure of property, detention of a person, 

and use of force pursuant to the Agreement if expressly requested to do so by 

the U.S. shiprider.

The provisions of the U.S.-U.K. Agreement are fully reciprocal; identical or 

equivalent terms apply to create a shiprider program for the United Kingdom. 

Congress has expressly authorized the President to enter into reciprocal maritime 

agreements with other countries in order to promote international cooperation to 

curtail drug traffic. See International Narcotics Control Act of 1992, Pub. L. No. 

102-583, 106 Stat. 4914.

The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments

Clause

2 Agreement Between the Government o f the United States o f America and the Government o f the Kingdom o f

the United Kingdom o f Great Britain and Northern Ireland on behalf o f the Governments o f Anguilla, Bermuda,

the British Virgin Islands, the Cayman Islands, Montserrat, and the Turks and Caicos Islands, Concerning Maritime

Counter-Drug Operations in the Western Atlantic and Caribbean Areas (Attachment A to Criminal Division Submission).

3 U.S.-U.K. Draft Agreement, article I.

4 U.S.-U.K. Draft Agreement, article 6.

347
Opinions o f the Office o f Legal Counsel in Volume 20

II.

The Emoluments Clause, U.S. Const, art. 1, §9, cl. 8, provides:

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.

The Emoluments Clause was intended to protect foreign ministers, ambassadors, 

and other officers of the United States from undue influence and corruption by 

foreign governments. Governor Randolph explained the purposes underlying Article 1, Section 9, Clause 8 in the Virginia Ratification Convention. He stated that 

it had been prompted by the gift of a snuff box by the King of France to Benjamin 

Franklin, then Ambassador to France. It therefore “ was thought proper, in order 

to exclude corruption and foreign influence, to prohibit any one in office from 

receiving or holding any emoluments from foreign states.” 5

We understand that the question has arisen whether the U.S.-U.K. shiprider program violates the Emoluments Clause by authorizing U.K. naval personnel, under 

instruction of the U.S. shiprider, to enforce U.S. law “ seaward of the territorial 

sea of Anguilla, Bermuda, the Cayman Islands, Montserrat, and Turks and 

Caicos.” 6 According to the Criminal Division Submission, see id. at 1-2, the 

concern regarding the Emoluments Clause stems at least in part from a prior opinion of this Office that concluded that the Clause prevented foreign government 

personnel— who receive pay from their own government — from being designated 

U.S. federal law enforcement agents.7

We conclude that the U.K. naval personnel assisting U.S. law enforcement personnel under the shiprider program do not hold an “ Office of Profit or Trust 

under [the United States]” within the meaning of the Emoluments Clause, and, 

thus, the Emoluments Clause presents no bar to the cooperative maritime 

counterdrug operations as outlined in the Criminal Division Submission and the 

U.S.-U.K. Draft Agreement. The U.K. naval personnel owe no duty of loyalty 

to the United States that would be compromised by payment from the British 

Royal Navy. Rather, they are, at all times, operating as members of the Royal 

Navy, owing their duty to the Royal Navy, and participating in a cooperative 

endeavor with the United States pursuant to the terms of an agreement executed 

by their own government. If British personnel enforce U.S. law, it is merely derivative of their duty to obey the dictates of the government of the United Kingdom.

5 3 The Records o f the Federal Convention o f 1787, at 327 (Max Farrand, ed., rev. ed. 1966) ( “ Farrand” ).

6 U.S.-U.K. Draft Agreement, article 6.

7 See Authority o f Foreign Law Enforcement Agents to Carry Weapons in the United States, 12 Op. O.L.C. 67

(1988) (“ 1988 O pinion” ).

348
Simply put, British pay could not undermine the “ undivided loyalty” 8 of the 

British naval personnel to the United States because their ultimate loyalty is to 

Britain, not the United States.

The Criminal Division Submission cites the 1988 Opinion of this Office, in 

which we concluded that “ the Emoluments Clause precludes the designation of 

foreign agents to enforce federal law in the absence of congressional consent.” 9 

The 1988 Opinion concluded that “ [a]s a matter of general principle, anyone exercising law enforcement powers on behalf of the United States must be viewed 

as holding an office of trust under the Emoluments Clause.” 10 We reject this 

sweeping and unqualified view.

Until 1988, we had never interpreted the Emoluments Clause as applying to 

persons entirely outside the federal government. To be sure, we concluded in 1982 

that the Emoluments Clause applies more broadly than just to the “ offices” covered by the Appointments Clause,11 and also reaches “ ‘lesser functionaries’ subordinate to officers.” 12 But such “ ‘lesser functionaries’ subordinate to officers” 

plainly are in the United States Government.

While we understand the concern behind the 1988 opinion — certain governmental functions are of such importance that their assignment to persons under 

obligation to a foreign government may raise serious problems — we see no basis 

for extending the Emoluments Clause to persons having no position or employment in the United States Government.13 First, the expressed purpose for the 

Emoluments Clause was to “ preserv[e] foreign Ministers & other officers of the 

U.S. independent of external influence.” 14 This formulation supports the view 

that the Emoluments Clause extends only to those, like foreign ministers, who 

have positions in the Government of the United States. Second, the ordinary meaning of the term “ office” does not include assignments of duties to persons who

‘ Id. at 69.

9 Id. at 68.

i0Id. at 69.

*1 See Application o f the Emoluments Clause o f the Constitution and the Foreign Gifis and Decorations Act, 6 

Op. O.L.C. 156, 157-58 (1982).

12 See Application o f Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 

Op. O.L.C. 96, 98 (1986). The Appointments Clause applies only to persons (1) in a position of employment (as 

opposed to an independent contractor), (2) within the federal government (3) that carries significant authority. See

Constitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208, 210-

11 (1995). The Emoluments Clause is not so limited. Most significantly, the Emoluments Clause applies regardless

of whether the person exercises “ significant authority.” See Application o f the Emoluments Clause o f the Constitution

and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 158 (1982) ( “ The problem of divided loyalties 

can arise at any level.” ).

13 In the same year we concluded that Civilian Aides to the Secretary of the Army occupied an “ Office of T rust” 

and thus were covered by the Emoluments Clause. In contrast to the U.K. shipriders, however, there was no question 

that, as a threshold matter, the Civilian Aides held an “ Office.” As the opinion explains, certain Army regulations 

governed Civilian Aides, the Aides were chosen by the Secretary according to specified criteria, and they were 

subject to security clearances and standards of conduct. They served a “ term o f office” of two years and enjoyed 

the “ responsibilities and privileges” of the position until formal “ separation action” was taken by the Secretary. 

Memorandum for James H. Thessin, Assistant Legal Adviser for Management, United States Department of State, 

from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application o f the Emoluments Clause to a Civilian Aide to the Secretary o f the Army at 3 (Aug. 29, 1988).

14 2 Farrand at 389.

The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments

Clause

349
Opinions o f the Office o f Legal Counsel in Volume 20

hold no positions in the government. In interpreting the term even outside the 

context of the Constitution, the Supreme Court has stated that “ [a]n office is 

a public station conferred by the appointment of government” and that “ [t]he 

term embraces the idea of tenure, duration, emolument and duties fixed by 

law.” >s

Assisting in the enforcement of federal law does not, in itself, make a person 

an officer for purposes of the Emoluments Clause. If so, all persons, including 

state actors, who enforce federal law would be barred from accepting any “ emolument’ ’ from a foreign government. Thus, for example, state governors, local officers, and qui tam relators would be barred from accepting an appointment as an 

instructor in certain foreign public universities.16 Such a limitation, however, is 

not compelled by the text of the clause — in fact it is not even facially consistent 

with the text— and would do nothing to further the purpose of the Clause.

Although the definition of an officer for the purpose of the Emoluments Clause 

is more expansive than for the Appointments Clause, this Office has drawn a 

distinction in the context of the Appointments Clause between individuals covered 

by that Clause and individuals who exercise authority that is delegated by federal 

law that is equally applicable to the Emoluments Clause. As we recently explained:

It is a conceptual confusion to argue that federal laws delegating 

authority to state officials create federal “ offices,” which are then 

filled by (improperly appointed) state officials. Rather, the “ public 

station, or employment’ ’ has been created by state law; the federal 

statute simply adds federal authority to a pre-existing state office. 

Accordingly, the substantiality of the delegated authority is immaterial to the Appointments Clause conclusion. An analogous point applies to delegations made to private individuals: the simple assignment of some duties under federal law, even significant ones, does 

not by itself pose an Appointments Clause problem.17

Similarly, we believe it is a conceptual confusion to argue that delegating authority 

to foreign officials creates federal “ offices,” which are then filled by (improperly 

paid) foreign officials. Rather, the office held is a foreign, not a U.S. office; the 

bilateral agreement merely adds additional authority to an existing foreign office.

>’ Metcalf & Eddy v. Mitchell, 269 U.S. 514, 520 (1926).

16 C f Applicability o f Emoluments Clause to Employment o f Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13 (1994) (concluding that foreign public universities are presumptively instrumentalities of 

foreign States under the Emoluments Clause).

17 The Constitutional Separation o f Powers between the President and Congress, 20 Op. O.L.C. 124, 142 n52 

(1996) (expressly superseding inconsistent prior opinions o f this Office regarding the Appointments Clause).

350
The assignment of some duties under an international executive agreement, even 

significant ones, does not by itself pose an Emoluments Clause problem.

CHRISTOPHER H. SCHROEDER 

Acting Assistant Attorney General

Office o f Legal Counsel

The Constitutionality o f Cooperative International Law Enforcement Activities Under the Emoluments

Clause

351