When Politico gave its usual run-down of the morning’s hot topics in health care on Wednesday, one extra special blurb caught my colleague Michael Cannon’s eye. Apparently a Dutch knight is working at the Centers for Medicare & Medicaid Services (CMS), a key federal agency in the Department of Health and Human Services.
On April 29, Sir Jay Merchant was knighted by Ambassador Rudolf Bekink on behalf of Queen Beatrix of the Netherlands. Merchant is the “international relations adviser” in the Office of the Administrator of CMS, which is the agency’s highest executive office.
While this may seem like just a neat factoid for inside-the-Beltway water-cooler amusement, there’s actually a constitutional problem that precludes this gallant story from having a fairytale ending. Article I, Section 9, Clause 8 (the “Emoluments” or “Titles of Nobility” Clause) states:
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.
In other words, it’s illegal for someone holding a federal “office of profit or trust” to accept a knighthood or other noble title. And this isn’t some archaic provision that hasn’t been dusted off since knights wore suits of armor. Believe it or not–and nothing is unbelievable when it comes to Obamacare implementation–this isn’t the first time this issue has arisen. It’s not even the first time in the last decade!
In 2007, for example, the FBI asked the Department of Justice for a legal opinion as to whether a member of the FBI Director’s Advisory Board held an “Office of Profit or Trust” under the Emoluments Clause, in the context of accepting travel reimbursements from foreign government. In his memorandum on the topic, Deputy Assistant Attorney General John Elwood (who wrote an article in the Cato Supreme Court Review just last year) concluded that an advisory board member doesn’t hold such an office “[b]ecause mere access to, or receipt of, classified information is not a delegation by legal authority of a portion of the sovereign power of the United States.”
But that was a different scenario than what we have with Sir Jay. He is a federal employee, listed among seven similar-ranking colleagues on the CMS employee directory. The Office of the Administrator is surely an “Office of Profit or Trust,” implementing and making decisions regarding Medicare, Medicaid, and other parts of the Social Security Act.