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.
Curiously, the controversial former head of CMS, Donald Berwick, was himself knighted in 2005, but this was before he came to be employed by the federal government in 2010. In addition, Berwick's knighthood was “honorary”--the lowest grade in the Order of the British Empire, just like that of Bill Gates--and the honor did not entitle Berwick to be called "Sir."
Merchant, on the other hand, received his Dutch treat while a federal employee of a high political office. As an international health care adviser, he undoubtedly exercises delegated power from the legal authorities at CMS who are implementing federal laws. Moreover, despite the word “adviser” in his title, Merchant is not just a member on a government advisory board, as was the point of concern in the DOJ Memo.
More to the point, he was not given approval by Congress to be knighted, as required by Section 9, and there is no public mention of his having requested such approval.
Finally, unlike Berwick’s British honor, the Dutch abolished honorary medals and replaced them with a new lowest grade called “Member Class of the Order of Orange-Nassau,” which is reserved only for Dutch citizens. Ironically, U.S. health care officer Jay Merchant is now the proud owner of a knighthood that is senior to many Dutch citizens’ titles! It isn't an “honorary” accolade like Berwick’s OBE laurel.
James Madison may now be rolling over in his grave, but at least he can rest assured with the knowledge that immigrants who wish to become American citizens must renounce any titles bestowed upon them by foreign lands. Federal employees, on the other hand, can have their noble cake and eat it too.