Ivanka Trump, the daughter of President Trump, recently changed her position in the White House from informal advisor to unpaid government employee. See CNN (Mar. 29, 2017). Through this change, Ivanka, referred to here by her first name to avoid confusion with her father, became officially subject to various statutory ethics rules.
Though the relevant statutory rules address many ethical questions, some apparently believe that Ivanka is also subject to the Foreign Emoluments Clause of the U.S. Constitution. See, e.g., N.Y. Times (Apr. 11, 2017). Commentators’ concerns are likely heightened by Ivanka’s global business interests, the control over which she has temporarily ceded to a relative.
However, it’s doubtful that Ivanka is subject to the Foreign Emoluments Clause. Under the clause, holders of an “office of profit or trust” under the United States are prohibited from receiving specified benefits from a foreign government. For much of this country’s history, the executive and legislative branches have understood that holders of an “office of profit or trust” include only those officials who exercise executive power and, as a corollary, are subject to the Appointments Clause of the Constitution. See Office of Legal Counsel Opinion, 2005 WL 2476992, *2-*8, *12 (Mar. 9, 2005) (discussing, among other things, ratification-era understandings, early Congressional practices, OLC opinions, and Buckley v. Valeo, 424 U.S. 1, 126 (1976)). Someone in a purely advisory position wields no executive power and thus would not be subject to the Appointments Clause or, by extension, the Foreign Emoluments Clause.
Regarding Ivanka, she plays an important role in setting policy, given her proximity to the President. However, her advisory position does not allow her to exercise any executive power, nor does the general delegation statute, 3 U.S.C. 301, permit the President to delegate any executive power to her. That statute allows delegation of executive powers only to agency heads and Senate-confirmed officers, not mere advisors. Consequently, Ivanka does not hold an “office of profit or trust” and the Foreign Emoluments Clause does not apply to her.
However, the executive branch has not always focused on the exercise of executive power when delineating the scope of the Foreign Emoluments Clause. The Office of Legal Counsel under the Reagan Administration broke from longstanding OLC precedents and applied the Foreign Emoluments Clause to a relatively low-level federal employee, and the Bush 41 and Clinton administrations expanded the clause further, applying it to even members of an advisory committee. Under the broad understanding reflected in the OLC opinions issued by the Reagan-Bush-Clinton administrations, Ivanka could easily be subject to the clause. See also Office of Legal Counsel, Application of the Emoluments Clause to a Civilian Aide to the Secretary of the Army (Aug. 29, 1988) (applying clause to unpaid civilian aide)
Nonetheless, it seems unlikely that the current administration will revert to those old views, even putting aside the self-interest in a narrow interpretation. As the Bush 43 administration explained, the prior interpretations led to “confusion.” And the Obama Administration flatly repudiated prior OLC precedents, offering only a grudging acknowledgment that “the Clause may apply in some instances to persons who do not hold an office under the Appointments Clause.” The momentum to return to the problematic Reagan Administration approach seems minimal.
Even assuming that the Trump OLC rejects the Obama Administration’s views and broadens the scope of persons covered by the Foreign Emoluments Clause, Ivanka will face potential violations only if she is hired by a foreign government as an officer, employee, or consultant. Virtually every available legal authority supports that understanding of the clause. See generally The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. — (2017). However, an advocacy group has filed a lawsuit against President Trump, and its arguments, if accepted, would substantially broaden the scope of prohibited emoluments, and Ivanka would face many of the same constitutional problems that would face her father.