Wednesday, October 28, 2009

Barry's Peace Prize - Consent

I knew there was a restriction in the constitution. I didn't know there was a law. But I'm still waiting to see if Obama will prove his constitutional credentials or his contempt for the law.

Rep. Ginny Brown-Waite, Rep. Cliff Stearns, and Rep. Ron Paul say “no,” and have sent a letter to the President asking him to request congressional consent, which they expect would be speedily given. They point to the example of President Theodore Roosevelt, who created a committee, including the Chief Justice, to hold Roosevelt’s Nobel Peace Prize money in trust until he left office. After leaving office, Roosevelt asked for congressional consent to disburse the money to particular charities.

Article I, § 9, clause 8, of the Constitution states that “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.”

When Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC § 7342 (titled “Receipt and disposition of foreign gifts and decorations”) sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an “employee,” which includes “the President and the Vice President.”

A “foreign government” includes ” any agent or representative of any such [foreign] unit or such organization, while acting as such.” Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A “gift” is “a tangible or intangible present (other than a decoration) .” A “decoration” includes a ” medal, badge, insignia, emblem, or award.”

By the statute, Congress explicitly consents to employee receipt of gifts of “minimal value,” which is “means a retail value in the United States at the time of acceptance of $100 or less.” The statute authorizes the Administrator of General Services to make regulations to adjust “minimal value” to reflect changes in the Consumer Price Index, beginning in 1981, and reflecting CPI changes in the previous three years. Roughly speaking, $100 in 1978 is about $327 today.

A Peace Prize laureate receives a diploma, a 196-gram gold medal, and a large check (10 million Swedish crowns in 2007). The spot price of gold is $33 a gram, so the medal and the check obviously do not qualify for the “minimal value” exception. The diploma, as a piece of paper, could, although not if it were delivered with an expensive frame.

In the statute, Congress also formally “consents” to an employee receiving and keeping “a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.” The diploma and the medal both fit within the definition of “decoration.” As President, Obama is the head of his own “employing agency,” and therefore can approve his receipt of the medal and the diploma.

The check is not a “decoration” and is of much more than “minimal value.” Employees may not accept gifts of more than minimal value. However, there are various exceptions, and the relevant one is that a gift may be accepted “when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that– (i) a tangible 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.” It would seem to be within the foreign policy discretion of President Obama to determine that refusing the Nobel check could cause offense, embarrassment, or an adverse effect on foreign relations.

Then, “Within 60 days after accepting a tangible gift of more than minimal value, employee shall– (A) deposit the gift for disposal with his or her employing agency; or (B) subject to the approval of the employing agency, deposit the gift with that agency for official use.” Accordingly, it would appear that President Obama must turn the check over to the United States government, for official use. I have not researched whether there are regulations detailing precisely how gifts which a President receives are to be disposed. It would appear that President Obama cannot personally give the Nobel money to charity.

Thus, it seems clear that the statute already supplies the constitutionally-required congressional consent for President Obama to accept the Nobel Peace Prize, and no further action by Congress is needed, provided that President Obama signs the check over the government, as the statute requires.

Makes you wonder if the check will be signed over to the government.

In a lot of ways this is more about what Obama will do with regards to the law rather than the money. But, it does appear to be something that should be noted as a real world indication of what he does rather than says.

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