October 29, 2009 3:53 PM
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Obama May Not Be Able To Keep $1.4M Nobel Cash
(AP Photo/Torbjorn Gronning)
But there may be a few obstacles to his plan. The most obvious is that the Peace Prize is closely linked to a foreign government -- all members of the Nobel committee are current or former Norwegian government officials -- and the U.S. Constitution limits gifts to government officials from any "foreign state." The purpose may have been to limit bribes, true, but the Constitution nevertheless fails to include an exception for Nobel Peace Prizes. And, besides, does anyone think this year's award was not trying to influence U.S. foreign policy at least a tiny bit?
Hmm.
The full text of the relevant portion of the Constitution says: "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."
Which is why three Republican House of Representatives members sent a letter to the president this week reminding him that, no matter what his spokesman said, Congress must consent. The letter from Ginny Brown-Waite (Fla.), Cliff Stearns (Fla.), and Ron Paul (Tex.) says:
Obtaining permission from Congress should be straightforward. President Theodore Roosevelt created a committee, including the Chief Justice of the Supreme Court and several Cabinet Secretaries, to hold (his Nobel Peace Prize) money in trust until after he left office. He then sought the consent of Congress to disburse the money to various charities. President Roosevelt rightfully complied with the requirements set forth in the Constitution and acted in a manner becoming of the office of the President of the United States. I trust you will do the same.
David Kopel, an attorney affiliated with Colorado's Independence Institute, points out that Congress has enacted a law governing gifts from foreign governments (which, if it clearly authorizes Obama to receive the Nobel cash, would presumably represent "the consent of Congress" through a pre-approval mechanism).
That law says an employee of the U.S. government, explicitly including the president and vice president, may not "accept a gift or decoration" from a foreign government, "other than in accordance with the provisions of subsections (c) and (d)."
Subsection (c) of the law says that that a gift "of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States." Subsection (d) isn't helpful; it refers to accepting a "decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance." Because a million-dollar check isn't exactly a "decoration," subsection (d) doesn't apply.
Translation: Under current federal law, it sure looks like the president is prohibited from endowing a Barack Obama Presidential Library or doing whatever else he might like with the money. Subsection (e) says that gifts from foreign governments must be either "returned to the donor" or "forwarded to the administrator of General Services for transfer, donation, or other disposal."
An op-ed earlier this month in the Washington Post made an even stronger argument: that merely accepting the Nobel prize is "unconstitutional." That seems to be a weak argument because of the statutory pre-approval process, as Yale constitutional law professor Jack Balkin points out. Balkin says "the money for such a gift is accepted on behalf of the United States."
Just to make matters more complicated, there's a set of regulations saying that a federal employee can accept a cash award "upon a written determination by an agency ethics official that the award is made as part of an established program of recognition," and lists the Nobel Prize for Medicine as an example. On the other hand, the Nobel Prize for Medicine has no connection with the Norwegian Parliament, and that section of the regulations does not deal with foreign gifts.
Of course, the White House attorneys could simply argue that even though the Nobel Prize was selected by Norwegian government officials, the money came from elsewhere, and thus the constitutional prohibition (and thus the statute and regulations) simply don't apply.
The counter-argument is that the chairman of the Nobel Peace committee is the president of the Norwegian Parliament (the Storting), and every other member is a current or former member of the Storting (and typically hold or held other senior posts in the Norwegian government). And, continuing that logic, the selection of the recipient matters as much or more than where the money comes from.
When Woodrow Wilson won the Nobel Peace Prize in 1919, the U.S. minister, Albert Schmedeman, explicitly thanked the Norwegian government on behalf of the president. Schmedeman said: "Let me assure you, members of the Norwegian Storting, that words fail to convey the deep emotion which stirs within me at this time, when it falls within my province to receive this testimonial on behalf of the President of the United States of America. No more fitting word of appreciation could be voiced than that contained in the President's message, in which he acknowledges the great honor that has been conferred upon him by the Nobel Peace Committee of the Storting."
Based on what the White House has told Politico.com, they've chosen to argue that that even though the Nobel committee is a creature of the Norwegian government, the prize doesn't qualify as coming from a "foreign state."
But that aspect of the prize hasn't changed since Teddy Roosevelt received it in 1906. If the 26th president was willing to ask Congress for approval to accept the prize and dispense it to charities after he left office, why shouldn't Barack Obama follow suit? It's not like the U.S. Congress is going to say no.
Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com and is on Twitter as declanm. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.
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Declan McCullagh is the chief political correspondent for CNET. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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