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Hillary Clinton and the Emoluments Clause:

There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Emoluments Clause:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ....

Adam Bonin's Daily Kos blog has a bit more on this, but the short version is that a Jan. 2008 executive order, promulgated pursuant to a 1990s cost of living adjustment statute, raised the salary of the Secretary of State, so the Emoluments Clause question is in play. I very recently read an article by John O'Connor on the subject, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), so I asked him what he thought. Here's his answer (some paragraph breaks added); please note that I have some comments at the end of this post that express a somewhat different view:

It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called “Saxbe Fix,” whereby the Secretary of State’s salary is reduced to the salary in effect before Senator Clinton’s current Senate term began.

I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility.

The Emoluments Clause provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.” As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton’s current Senate term, which does not end until 2012. Therefore, under a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.

I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which “have been encreased.” Even if the emoluments of the office are later reduced, it seems to me that they “have been encreased” during Senator Clinton’s current Senate term even if they are later decreased.

Professor Volokh suggested [in the e-mail requesting this response -EV] that the clause might be read so that the emoluments of an office “have been encreased” only if the salary at the time of appointment is higher than the salary at the beginning of the appointee’s congressional term. I do not think that is the best textual reading of the clause. The clause’s use of the past participle (I think that’s what it is) “have been encreased” focuses on acts prior to appointment, and not on where the office’s emoluments stand at the time of appointment as compared to some prior point in time.

This focus [on] a past act of increasing emoluments, rather than on the emoluments existing at the time of appointment suggests to me that the clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end.

In addition, one of the central theses of my law review article on the subject is that the purpose of the Emoluments Clause is disserved by the Saxbe Fix. The records of the federal constitutional convention indicate two purposes underlying the Emoluments Clause: (1) general anti-corruption, whereby Congress might conspire with the President to create offices, or to give existing offices exorbitant salaries, with the understanding that a Member of Congress would be appointed to the office; and (2) limiting the size, importance, and reach of the federal bureaucracy.

The general anti-corruption purpose of the Emoluments Clause might be served by ensuring that a Member of Congress does not get the benefit of any salary increases taking effect during his or her term. But the other purpose of the Emoluments Clause -– limiting the size and power of the federal government as compared to the states -– that purpose is disserved by he Saxbe Fix. The argument in favor of the Saxbe Fix focuses on the back end of the process, making sure the appointee does not benefit from a salary increase. But the purpose of the Emoluments Clause is furthered by the effect it has on the front end -– discouraging the creation of new offices or the increase in the salaries of federal offices by rendering Members of Congress ineligible for appointment, during their current terms, to any office created during their current terms or to any office the salary of which has been increased during their current terms. If, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices.

As they say, anyone wanting the full-blown version of my thought on the subject [which also includes a detailed discussion of the second rationale, "limiting the size, importance, and reach of the federal bureaucracy" -EV] should read the entire law review article I wrote, but this is the gist of it. I should also note that I am highly skeptical that a court would find anyone to have standing to challenge Senator Clinton’s appointment, so this is probably all just an academic exercise. And, I should add that, constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.

Here's my very tentative thinking: I think the phrase "the Emoluments whereof shall have been encreased during such time" is ambiguous. It could mean "shall have been increased at least once," or it could mean "shall have been increased on net." If you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me quite possible that you would mean "Has it been increased so that it now costs more than it cost a year ago?," rather than "Has it been increased at all, even if the price hike was entirely rolled back a month later?" In fact, the "on net" reading strikes me as more plausible than the rival reading. If that's so, then the question is how you resolve the ambiguity, in light of

  1. the purpose of the Clause,

  2. the adjustment's being a cost-of-living adjustment that in practice prevents a real-world decrease in pay rather than being a real-world increase (irrelevant to the purely textual analysis that would apply if the text were clear but possibly relevant if the text is ambiguous and we have to resort to determining the purpose of the Clause), and

  3. the Saxbe fix precedent, which dates back to then-President William Howard Taft and Secretary of State Philander C. Knox and has been reinforced by President Nixon and Saxbe, President Carter and Secretary of State Edmund Muskie, and President Clinton and Secretary of the Treasury Lloyd Bentsen, though it has been dissented from during the Reagan Administration, when the Administration's conclusion that the Saxbe fix was unconstitutional apparently helped lead to the selection of Robert Bork (and then Douglas Ginsburg and finally Anthony Kennedy) in place of Senator Orrin Hatch.

I don't know what the answer is given all that, but those are the things that I'd think about. (I should add that I also agree with John O'Connor that "constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.")

Note also that Michael Stokes Paulsen's Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) suggests that someone might indeed have standing to challenge the Saxbe fix, though only after the appointment. Here's what Prof. Paulsen says about Secretary Bentsen in particular, though it would likely apply to a Secretary of State as well:

In the Lloyd Bentsen case, however, I would not be too sure that there is no litigation risk. While a direct taxpayer or citizen suit might be foreclosed by the Incompatibility Clause precedent, the unconstitutionality of Bentsen's appointment could always be invoked as a defense to some coercive action or order by the Treasury Secretary, much as the unconstitutionality of the Independent Counsel statute was asserted (unsuccessfully) as a defense to prosecutions brought pursuant to that statute. Indeed, the Lloyd Bentsen Relief from the Constitution Act of 1993, like earlier such relief acts, authorizes private civil actions contesting the unconstitutionality of Bentsen's appointment by "[a]ny person aggrieved by an action of the Secretary of the Treasury" and provides for expedited consideration and appeal of such a lawsuit. A person adversely affected by a Treasury Department regulation promulgated by Secretary Bentsen -- say, for example, new Treasury or IRS regulations implementing President Clinton's tax hikes -- would have standing to sue to have such regulations overturned on the ground that the Secretary of the Treasury was illegally appointed. Of course, there would be many collateral issues of jurisdiction and remedy. (Could an aggrieved individual also obtain injunctive relief against Bentsen's continuance in office? Could Treasury simply reissue the regulations under the authority of an Acting Secretary and make them retroactive?) But the short point is that Bentsen's unconstitutional appointment can be made the subject of a lawsuit and that a finding of unconstitutionality could create a real mess.

I could find no such challenges, however.

Ben P:
It seems to me here the root of the problem is as much with the delegation of authority to the president to give cost of living adjustments (or raises) via executive order.

If congress were to have to pass special legislation for each pay raise, the legislation would be a larger issue and would almost certainly occur somewhat infrequently.

But assuming that the executive can order a COLA every year, (or even every 2-3 years,) and the terms of representatives and senators are 4 and 6 years, at any given time the vast majority of congress is made ineligible to be appointed to a cabinet position through no action of their own.

Ignoring the "saxbe" fix and the argument that a cola is not actually a "raise" for the moment, this seems an odd result.
11.24.2008 1:09pm
Snaphappy:
Tax-protestor-type argument:

Clearly the clause does not apply because there has been no "encrease" in the emolument. Nowadays, as O'Connor recognizes, salaries are INcreased, not ENcreased. "Encrease" sounds like what happens when you fold a piece of paper. Any other argument fails to take account of the strict text of the Constitution.
11.24.2008 1:14pm
nicestrategy (mail):
O'Connor:

This focus [on] a past act of increasing emoluments, rather than on the emoluments existing at the time of appointment suggests to me that the clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end.


I don't follow this logic. Where in the text does O'Connor find a "focus?"

Legislators are disallowed from newly created executive offices, from offices that have gotten a rise in compensation*, or from holding legislative and executive positions simultaneously. This seems to put the emphasis squarely on avoiding corruption.

The intent is clearly not simply to disallow legislators from switching into the executive branch during mid-term, as that goal could have been accomplished with much simpler language. As it stands, legislators are eligible for appointments so long as the office had existed before they were in Congress and had not seen a rise in compensation.

*Has anyone analyzed the total compensation package? Might the executive branch positions have more co-pays and deductibles than they used to, potentially negating the COLA? How do the non-salaried aspects of the 2 positions compare?

In any case, here is yet another example of where being a slave to the text does disservice to the intent of the writers and the governance of the nation. Do we really need to amend the Constitution in light of monthly paychecks and COLAs?
11.24.2008 1:28pm
MarkField (mail):
While I can see that the actions of a Treasury Secretary might create grounds for a private challenge, that's a little harder to imagine for a Secretary of State.
11.24.2008 1:32pm
Oren:
(1) Dollar values in the Constitution and all statues should (unless explicitly otherwise in the text) be read to refer to real, not nominal dollars. I've written about that before so I won't rehash that argument.

(2) If Hilary resigns, she is no longer a Senator and does not meet the predicate of "No Senator or Representative shall ...". Surely citizens cannot be made to be Senators against their will.

If that's not valid, can the Senate just expel her to rid her of the problem?
11.24.2008 1:40pm
David Schwartz (mail):
Oren: As I read the text, expulsion or resignation won't solve the problem. It says "during the Time for which he was elected". If you interpret "No Senator or Representative" to only mean those not resigned or expelled, then "during the Time for which he was elected" becomes mere surplussage.
11.24.2008 1:46pm
John (mail):
While the Saxbe fix tries to adjust for what the "fixers" thought the intent of the emoluments clause was all about, the emoluments clause does not allow anybody to make fixes. If the framers had wanted to, they could easily have added a proviso to the effect that the senator could take her new job provided any increased emoluments be surrendered. They did not provide this.

And there is good reason why no one in his right mind would make such a proviso. If Congress wanted to raise the salary, then the logical stunt would be to allow a Saxbe fix and THEN give the office holder the raise right back.

It would not surprise me that it was the fear of just such an approach that left the emoluments clause without the Saxbe fix proviso.
11.24.2008 1:47pm
Snitty:
While I like the coercive act argument for standing, I can't help but feel that the court would say "Political Question" and avoid getting tangled in this kind of think, just like they would if Mr. Keyes brings is challege to President Elect Obama's election again, if he can get standing.

This just doesn't srike me as the kind of constitutional violation that the court would be particularly interested in correcting.
11.24.2008 1:50pm
Lior:
Oren's reply reminds me of the discussion about the right of members of Congress to resign. IIRC in the UK members of parliament cannot resign; if they want to leave office they are therefore automatically appointed to an executive position making them ineligible to keep their seat. This is quite amusing.

More seriously, I am not familiar with 18th-century grammar, but, in modern parlance, "shall have been increased" means "have undergone an increase at least once". Otherwise you'd say "shall have increased". The point is the distinction between "to increase" from "to be increased". In particular I agree that the "Saxbe fix" is unconstitutional.

However, in my opinion a more essential argument for Ms. Clinton is that the relevant law was passed in 1990. First of all, as Oren points out, comparisons should be made in real and not nominal dollars (this should also apply to the well-known twenty-dollar threshold). Second and more important, the salary scheme today is the same one that was in operation when Ms. Clinton took office.
11.24.2008 1:59pm
ShelbyC:

If Hilary resigns, she is no longer a Senator and does not meet the predicate of "No Senator or Representative shall ...". Surely citizens cannot be made to be Senators against their will.




And then what if she's not appointed/confirmed?
11.24.2008 2:00pm
Simon Dodd (mail) (www):
Mark Tushnet put the matter with great concision and force a few years ago: "[R]escinding the increase does not mean that the salary 'shall not have been increased' it simply means that the salary shall have been both increased and reduced during the term." Taking the Constitution Away from the Courts 35 (2000). I had a post last monday on this, and another today elaborating on this issue.
11.24.2008 2:04pm
JohnJ (mail):
If you think that the Constitution will restrain President Obama from doing anything he wants to do, you're going to be in for quite a shock.
11.24.2008 2:05pm
Grigor:
Though the Treasury Department is certainly regulation-happy, and therefore a natural field where coercive actions might sprout, it's not hard to think of areas where a private citizen could be affected by State Department action as well. For example, passports are issued in the name of the Secretary of State under State Department regulations. An individual denied a passport could assert standing.
11.24.2008 2:05pm
Simon Dodd (mail) (www):
Oren:
If Hilary resigns, she is no longer a Senator and does not meet the predicate of "No Senator or Representative shall ...". Surely citizens cannot be made to be Senators against their will.
You're forgetting to read the whole clause. The prohibition covers the time for which a Senator or Representative has been elected, not simply the time that they actually serve. Cf. The Kirkwood case, 17 Op. Attorney General 365 (1881), or, for a more recent case to the same effect, this 1996 OLC memo to the same effect (read n.2 and accompanying text closely).
11.24.2008 2:07pm
Lior:
JohnJ: we already know that the Constitution has generally failed to restrain President Bush from doing anything he wanted to do. In general, the Constitutions are not very good at actually getting themselves enforced (c.f. the 1917 Constitution or the Weimar Constitution). They depend on the government actually believing themselves bound by the constitution more than on actual enforcement (which force do you envision counteracting the executive?). The problem, of course, is that governments tend to follow the constitution the believe in, rather than believe in the constitution they are supposed to follow.
11.24.2008 2:17pm
Grigor:
On the point of whether there is significance to the question of whether the Emoluments are encreased by legislation vs. by executive order, note the following comments quoted in the OLC memo linked by Simon Dodd:

Moreover, even at the time of the Framing, it was understood that the Clause was a highly imperfect safeguard against the danger that the prospect of appointment to office would improperly influence Members of Congress. Luther Martin, a delegate from Maryland to the Philadelphia Convention, provided his State legislature with a critical report on the Convention's work. As to the Ineligibility Clause, he wrote:


As to the exception that [Members of Congress] cannot be appointed to offices created by themselves, or the emoluments of which are by themselves increased, it is certainly of little consequence, since they may easily evade it by creating new offices, to which may be appointed the persons who fill the offices before created, and thereby vacancies will be made, which may be filled by the members who for that purpose have created the new offices. (33)



The bolded part (and the preceding clause) seems to indicate that at least one delegate assumed that the disability arises only when it is Congress that increases the emoluments (or creates the office).
11.24.2008 2:26pm
Cornellian (mail):
IIRC in the UK members of parliament cannot resign; if they want to leave office they are therefore automatically appointed to an executive position making them ineligible to keep their seat. This is quite amusing.

IIRC "the Chiltern Hundreds" is the name of the executive "office" they get appointed to. It has no duty or function other than to get the appointee out of the Parliamentary seat he's technically not able to resign. Brits are really good at finding work-around solutions like that. As I recall, the office figured in the plot of a 19th Century novel by Anthony Trollope, think it was "Phineas Finn."
11.24.2008 2:33pm
Dilan Esper (mail) (www):
Where's O'Connor's evidence that the purpose of the emoluments clause was to reduce the size of the federal bureaucracy (a concept that wasn't even in anyone's mind at the time the Constitution was adopted)? Where's the evidence that it would actually accomplish that if enforced?

This sounds like a parody of a conservative legal argument. If you want to discuss the commerce clause and the 10th Amendment, sure, they were intended to limit the size and scope of the federal government, and there are good arguments that federal powers have been stretched to the breaking point. But the emolument clause?????? How were the framers going to control the size of government by preventing sitting members of Congress from resigning and moving to the executive branch?

Not anywhere near everything in the Constitution has anything to do with the size and scope of the federal government, and this is one of the things that doesn't.
11.24.2008 2:36pm
arbitraryaardvark (mail) (www):
Circa 1992 I saw a bumper sticker that said "Impeach Clinton - and her husband". Is a lawsuit the exclusive means of removing an unconstitutional cabinet member? Would Hillary need to resign from the Senate before her confirmation hearings, or only upon confirmation? Are there any Democratic senators willing to raise the constitutional issue?
ObRonPaul: measured in gold, which would seem consistent with original intent, i'm guessing the pay for the job has fallen rather than risen.
11.24.2008 2:36pm
arbitraryaardvark (mail) (www):
Emolument: a budget which cuts itself.
11.24.2008 2:38pm
Simon Dodd (mail) (www):
Grigor, the problem with that view is that all of the framers would have assumed that the disability only arises when Congress acts to increase the emoluments of the office, would they not? They would have had to. They would have understood that Officers would be paid from the U.S. treasury, they required in Art. 1 § 9 that moneys could only be drawn thence in consequence of appropriations made by Congress, and so it seems to be a necessary presupposition on their part that the kind of increase contemplated by the clause must result from Congressional action. Nevertheless, that isn't what they said; it says nothing novel to say that the text of the ineligibility clause is an imperfect fit for what we infer to be its purposes. It's overinclusive, but that doesn't mean it's ambiguous. So the question becomes: does this presupposition by the framers, when combined with the evident purpose of the clause, extratextually contract the reach of the clause such that only increases in emoluments resulting from a statute voted on by a member of Congress operate as a bar to their appointment?

(Paulson addresses this point, by the way, concluding in the article that Eugene linked to that "It is not necessary that Bentsen himself voted for the pay increase.")
11.24.2008 2:42pm
Simon P:
On standing: Congress can't just create a cause of action to challenge the unconstitutional appointment of a Cabinet official, can it? Even if it tries to hook it on some hypothetical claim of harm? IIRC, there must still be constitutional standing, so that the thresholds of particularized harm, causation, and redressability still have to be met, right?

As for O'Connor: conclusive reliance on the "plain meaning" of a text gives me hives. I prefer your analysis of what "enoluments" might entail; particularly because I think it would help to avoid the apparently absurd consequence, on O'Connor's strict reading, that even de minimis increases would amount to disqualifying "emoluments."

On a more substantive note, I'm not sure that the distinction between administrative increases and legislative increases can be so lightly disregarded. O'Connor's analysis would apparently disqualify all Senators and Representatives if the executive branch had been given authority and was required to make annual COLA's back in 1952 (prior to the election of any currently-sitting congressional representative), even if no congressional adjustment to the pay of government officials had been enacted since. Does the Enoluments clause contemplate that kind of categorical bar? How does such a bar serve the interests of discouraging the growth of government? I think it makes more sense to hook an administrative policy implemented pursuant to a congressional enactment, as an "enolument," back to the enactment itself, and not to any particular administrative action taken pursuant to it.

I'm also not sure what to do with the fact that, on the "plain meaning," Senators are apparently more likely to be disqualified by some enolument than Representatives. The disqualification appears only to apply to enoluments that occur during a time for which a congressmen was elected, and since Representatives are only ever elected for two-year terms, it would seem then that a Representative could avoid an enolument disqualification after two years, while a Senator may have to wait up to six. Does that make any sense?
11.24.2008 2:43pm
JohnO (mail):
I told myself I would stay out of the comments on this post, but in response to the comment of Dilan Esper, I would simply respond that my law review article (which I suggested anyone interested should read before assessing my arguments) lays out the percevied connection (at least by some Framers) between the Emoluments Clause and the size of the federal bureaucracy. In particular, see pages 164-68.

Best,
John O'Connor
11.24.2008 2:44pm
Simon Dodd (mail) (www):
Sorry, cited, not linked to. Crossed wired!
11.24.2008 2:45pm
Simon Dodd (mail) (www):
SimonP:
[S]ince Representatives are only ever elected for two-year terms, it would seem then that a Representative could avoid an e[m]olument disqualification after two years, while a Senator may have to wait up to six. Does that make any sense?
Makes perfect sense to me. They have to wait until their term of office is up. Why wouldn't that make sense?
11.24.2008 2:49pm
Nunzio:
If a senator or representative resigns, then that person is no longer a senator or representative regardless of whether the position or salary was increased during their term because their term ends when they resign.

Since there's no guarantee of appointment/confirmation, then seems like a fair workaround. As long as the person has some skin in the game, then there's no problem.

So Hillary must resign.
11.24.2008 2:51pm
arthur (mail):
The Secretary of State is responsible for review of passport applications, not that she actually has much to do with it. Anyone whose passport is revoked (or whose application is denied?) during the relevant period will have standing to challenge the appointment. also, the State Department issues various kinds of certifications for doing business outside of the United States pursuant to treaty obligations. For example adoption agencies are certified as "Hague Convention compliant" by the state Department, and without that certification, they can't handle international adoptions from nations that are signatories to that Convention. For examples of other situations where people will have standing to make the challenge, search for federal cases listing Condoleeza Rice or Colin Powell as defendant.
11.24.2008 3:00pm
Simon Dodd (mail) (www):
Nunzio, that interpretation stands athwart both the text of the clause (you're violating the surplussage rule) and the Department of Justice's commonsense interpretation of it going back more than a century. You'll have to do better than that.
11.24.2008 3:00pm
Conrad Bibby (mail):
It seems fairly obvious that the Saxbe solution will be invoked notwithstanding its probable unconstitutionality. Very few people will treat this as a serious threat to the integrity of our constitutional form of government.

If someone were really serious about it, however, it would be interesting to examine whether cases of this sort should be thought of as a separate category of amendments to the Constitution. We know constitutional law can be changed by means of a constitutional convention, amendments ratified by the states, or decisions of the Supreme Court (albeit with different theoretical underpinnings from the previous two). Is there a fourth means, namely the unchallenged assertion of a dubious constitutional proposition by Congress and/or the President, which assertion nevertheless evades review due to the lack of a formal challenge, the lack of standing to bring a formal challenge, or the perception of a "political question" the precludes judicial review?

In addition to the immediate issue of HRC's eligibility for the office of secretary of state, there is the example of John Tyler's assumption of the title of "president" upon the death of Wm. Harrison. Evidently, this was fairly controversial in its day, since the Constitution only provided that the Veep would succeed to the powers and duties of the office of president, not the office itself. Yet, Tyler declared himself the president and, to my knowledge, nobody ever really contested it. Certainly, nobody todays denies that Tyler was the president.

The Saxbe solution seems to follow the same general pattern. The text of the Constitution presents a rather clear obstacle to something nobody in fact really objects to, or cares enough about to fight over. Under these circumstances, as in the Tyler example, the president essentially ignores or papers over the constitutional problem, and the resulting act thereafter serves as precedent for future presidents to rely on. It's both effective and a whole lot easier than amending the Constitution.
11.24.2008 3:04pm
Gregg the Obscure (mail):
If Rove were really the evil genius he was once imagined, in early 2008 W should have proposed a raise for POTUS effective 1/21/09. That would have not only barred all of the prominent Democratic candidates from taking office, but given the GOP a chance at running a better candidate.
11.24.2008 3:08pm
Smokey:
The only reason for Hillary to resign from a safe seat in one of the best jobs in the land, with no practical oversight whatever, would be that she is padding her resume for a second shot at the crown.

And:
...the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause.
The "plain reading" of the Framers is unambiguous. So naturally, the esteemed Justices will probably find an emanation in one of the Constitution's penumbras that explains how black is white, up is down, evil is good, and the Emoluments Clause means something other than what it clearly and explicitly states.

Any takers?
11.24.2008 3:08pm
Neal J. King (mail):
If this principle is adhered to strictly, wouldn't it likely make it impossible to elect most Senators to the position of President? (Depending upon the timing of salary increases to the Presidential salary, of course.)

It seems to me that the missing element is, What was the actual purpose of this principle?
11.24.2008 3:09pm
RPT (mail):
"JohnJ:

If you think that the Constitution will restrain President Obama from doing anything he wants to do, you're going to be in for quite a shock."

Assuming that he thus followed in the footsteps of his predecessor, perhaps we could revert back to the pre-2001 system of checks and balances among the three branches of government. Please include a cutback in the executive privilege doctrine on the menu.
11.24.2008 3:09pm
MatrixArchitect:
This my friends, is why I read this blog. Great subject matter!
11.24.2008 3:12pm
Grigor:
Gregg the Obscure and Neal J. King: the Presidency is neither a civil Office under the Authority of the United States, nor an appointive one.
11.24.2008 3:15pm
Stephen R (mail) (www):
Couldn't she resign her position? It doesn't say "No current or former Senator or Representative shall..."

If she quits, she's no longer a Senator, and he can appoint her.

A few people have commented how this affects POTUS -- it doesn't. The POTUS isn't appointed -- he's elected.
11.24.2008 3:19pm
Spartacus (www):
In general, the Constitutions are not very good at actually getting themselves enforced (c.f. the 1917 Constitution or the Weimar Constitution).

Or the Mexican Constitution of 1824.
11.24.2008 3:27pm
Spartacus (www):
If Rove were really the evil genius he was once imagined, in early 2008 W should have proposed a raise for POTUS effective 1/21/09. That would have not only barred all of the prominent Democratic candidates from taking office, but given the GOP a chance at running a better candidate.

Problem with this argument is that the Clause only prevents appointments, not elections, of such officials.
11.24.2008 3:28pm
Smokey:
Conrad Bibby:
The text of the Constitution presents a rather clear obstacle to something nobody in fact really objects to...
Nobody?

I may be a nobody, but this thread is a pro/con discussion over an explicit Constitutional requirement. Simply saying that it doesn't matter could apply, to a greater or lesser degree, to most other Constitutional requirements; there's always somebody ready to argue. You have heard of lawyers, haven't you?

If the country wants to change the rules, there is a mechanism in place. Claiming that it's too difficult for this situation is a non-answer.
11.24.2008 3:28pm
Nunzio:
As long as we're speaking on constiutional Emoluments, Article 2 Section 1 says that the President shall receive "Compensation" for his "Services" but no other "Emolument" during his term.

So does this mean the POTUS only gets the $400,000 salary and that's it? No health care benefits, free lodging and meals, airplane and car?

And if the house, the car, etc. are part of the "Compensation" what then counts as an "Emolument" (insert Monica Lewinsky joke here)?
11.24.2008 3:36pm
Simon Dodd (mail) (www):
Stephen R, that's been answered several times in comments above.
11.24.2008 3:36pm
Smokey:
Stephen R:
If she quits, she's no longer a Senator, and he can appoint her.
BZ-Z-Z-Z-Z-ZT!!

Wrong!
"No Senator or Representative shall, during the Time for which he was elected, be appointed..."
But thanx for playing, and we have some wonderful parting gifts for you on the way out.

See, Conrad B? There are always objections.
11.24.2008 3:37pm
PersonFromPorlock:
Just for fun, what happens if the Congress reduces the Secretary of State's salary by one dollar; has it still been 'encreased' or does the decrease in the increase translate, as it usually does in Washington-speak, into a cut?
11.24.2008 3:38pm
Smokey:
From my handy Mac widget dictionary:

emolument: noun. a salary, fee or profit from employment or office.
11.24.2008 3:40pm
Simon Dodd (mail) (www):
Nunzio, a friend of mine spotted that last week, and it's an interesting point. It does suggest a gloss on the meaning of "emolument" doesn't it - perhaps that an "emolument" in the sense used here doesn't include fringe benefits like AF1, but rather, benefits that one can walk away from the office with at the end of one's term, such as salary, non-monetary gifts and so forth.
11.24.2008 3:41pm
jccamp (mail):
I tend to agree with Smokey's last post. If the language is unequivocal, and Sen. Clinton not eligible for the DOS position, then there should be a solution other than "Oh, shoot. Who cares?"

I believe that the President should get the appointees he wants (or, in this case, at least those whom he selects), and that the situation presently faced should be legitimatized. But we should at the least pretend to observe the niceties of the Constitution.

And resorting to back-then dollars and now dollars and other like subterfuges really don't make it.
11.24.2008 3:48pm
Tony Tutins (mail):
The intent of the clause fairly clearly seems to be to prevent Congress's creating sinecures for themselves. Secretary of State is not a patronage plum, so I don't see the problem. If the framers had simply wanted to prevent legislators from moving to the executive branch, they could have said so.

The larger concern: Would the Emoluments Clause prohibit Obama from taking office? Did the President get a pay raise since 2004? Was it an issue when JFK ran?
11.24.2008 3:49pm
Henry679 (mail):
Bottom line--NOBODY cares, including the Supremes, if it ever gets there. They will bless the Saxbe Fix or punt as a "political question" (or some combination of both).
11.24.2008 4:11pm
Bill Harshaw (mail) (www):
I have to agree with Conrad Bibby, and disagree with Smokey and jccamp. The realistic issue is whether anyone really feels strongly enough about the issue to push it through the courts. Remembering the feelings at the time of the "Saturday Night Massacre" which preceded the Saxbe nomination I'd say if the Democrats didn't feel strongly enough then to push the case, the Republicans aren't going to feel strongly enough now.
11.24.2008 4:18pm
ShelbyC:
Smokey:

BZ-Z-Z-Z-Z-ZT!! Back atcha.

There are two requirements.

"No Senator or Representative, shall during the Time for which he was elected, be appointed..."

The literal meaning is that the person has to be a current Senator or Representative.
11.24.2008 4:24pm
John Jenkins (mail):
Tony: As noted above, the presidency is an elected office, not an appointed one. Senator Obama faces no impediment to taking office.
11.24.2008 4:25pm
John Jenkins (mail):
Shelby, the literal meaning is exactly what it says. During the time period for which the legislator is elected (either a 2-year or 6-year term), the legislator is ineligible for executive offices that are appointed and that have had pay increases.

Using Senator or Representative just means that he or she had to take the seat originally. One who was elected, but declined to serve, would not be included because that person would never have been a Senator or Representative.
11.24.2008 4:28pm
Edward Sisson (mail):
As regards the Secretary of State's power to act in ways that impose burdens on citizens, and thus create Article III standing, what about treaties? Under the Supremacy Clause, a treaty can have the effect of federal law, placing burdens upon citizens, correct? And there are treaties, such as extradition treaties relating to criminal defendants, that have very substantial direct effects on certain individuals. If a treaty comes into effect only as a result of the actions of a person purporting to act as Secretary of State, or if a treaty is signed not by the President but by a person who is signing because he or she purportedly is Secretary of State, a person against whom the treaty is invoked would appear to have standing. Indeed, in the context of a person subjected to an extradition treaty, whose very liberty and perhaps life are at stake, there would be a very good constitutional argument, that no such "Saxby fix" statute could operate to deprive that person of fundamental rights such as liberty or life.

There is also the question of whether statutes that bar private citizens from engaging in the conduct of the foreign affairs of the USA might also place in legal jeopardy any person who purportedly is acting as Secretary of State.
11.24.2008 4:28pm
Mike G in Corvallis (mail):
“[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.”

Simon P wrote:

I'm also not sure what to do with the fact that, on the "plain meaning," Senators are apparently more likely to be disqualified by some enolument than Representatives. The disqualification appears only to apply to enoluments that occur during a time for which a congressmen was elected, and since Representatives are only ever elected for two-year terms, it would seem then that a Representative could avoid an enolument disqualification after two years, while a Senator may have to wait up to six. Does that make any sense?

Hmm. You say "term," the Constitution says "time." I understand Simon P's point, but I'd like to raise a different one based on the distinction between the two words: What if a Congresscritter received a pay raise during a previous term? If the President wanted to appoint Robert Byrd as Secretary of State, and the good Senator received an encrease in emoluments in 1960 -- but no pay raises since then -- would that still disqualify him until his current term expires? He was a Senator then, he's a Senator now, his time in office has been continuous ...
11.24.2008 4:29pm
Malvolio:
About the standing issue: any disappointed job-seeker has standing to sue for employment discrimination. Can I sue Obama for nominating Clinton, and claim standing on the grounds that I want to be Secretary of State?

Not that I really do. I'm holding out for the Treasury spot.
11.24.2008 4:32pm
ShelbyC:
John Jenkins, I agree that that's how it should be interpreted, but it's not the literal meaning. And when you're saying things like BZ-Z-Z-Z-Z-ZT!! you should have your ducks in a row.
11.24.2008 4:33pm
Alex R:
I am reminded by this of the argument made after the 2000 presidential election that the electors from Texas could not vote for Bush and Cheney, due to the 12th amendment language stating that they could vote for a president and a vice-president "one of whom, at least, shall not be an inhabitant of the same state with themselves". Cheney moved his voter registration to Wyoming not long before the election, but there was at least a plausible argument that this should not affect Cheney's habitation for the purpose of the 12th amendment. As far as I can tell, *no one* currently thinks that it would be desirable for presidents to be unable to choose running mates who live in the same state, any more than they think it would be desirable for them to be unable to choose sitting Senators or Representatives as cabinet secretaries. As in this case, a work-around was presented which "fixed" the problem, as long as one didn't poke too much at the solution.

Anyone arguing that the "Saxbe fix" -- which apparently predates Saxbe -- is not constitutional should also presumably insist that filing some voter registration papers doesn't change which state you inhabit, and therefore that Texas's electors in 2000 could not vote for both Bush as president and Cheney as VP.
11.24.2008 4:34pm
Edward Sisson (mail):
ShelbyC, Smoky, and John Jenkins: the literal text refers to a person who is at the time of appointment a sitting Senator or Representative. The text does not refer to "former" Senators or Representatives.

It does not say "No person who was a Senator or Representative at the time the emoluments for an office were increased shall be appointed to that office."

It does not say "No person who held a seat as a Senator or Representative during the term of which seat the emoluments for an office were increased shall be appointed to that office."

It appears plain that so long as the Senator or Representative resigns the seat before the date of appointment, and thereby is merely a former Senator or Representative at the moment of appointment, the appointment is valid.

The risk imposed by the text is that the person seeking the office whose emoluments rose during the term risks the possibility that the President will, after the resignation, refuse to make the appointment, leaving the person with no federal office of any kind. This establishes a kind of balance of power between the President and that Senator or Representative, in that one can vote to raise the emoluments of an office, but thereafter not occupy it without first giving up the leverage over the President that a sitting Senator or Representative has.

Note also that the text is a limitation of the President's power of appointment. Of course, since the Senate cannot confirm anyone who has not previously been lawfully appointed, the text also has the effect of limiting the power of the Senate.
11.24.2008 4:44pm
Anderson (mail):
Can't we get an OLC opinion that the Constitutional provision in question is "quaint"?

... Which it is, btw; it's precious to think back to a time when government offices were actually seen as so financially remunerative that such a provision (based on Americans' notions of Parliamentary corruption) seemed necessary.

As a practical solution that respects the spirit of the law, I would say that Hillary should return to the Treasury the addition in salary, which I think would leave anyone's standing to challenge the move very questionable indeed.

What's the Latin for "no harm, no foul"?
11.24.2008 4:50pm
David Schwartz (mail):
PersonFromPurlock: The clause is clear, the emoluments "have been increased". Whatever we do now, it won't change that. The use of this unusual tense -- "shall have been" -- admits of no future cure. What has been, has been.
11.24.2008 4:57pm
Simon Dodd (mail) (www):
Shelby:
The literal meaning is that the person has to be a current Senator or Representative.
No it isn't. That reads the proviso about the term of office out of the clause. The interpretation you're urging on us - that resignation cures the problem - would work if the clause read "no Senator shall be appointed to any civil office under the authority of the United States the emoluments whereof have been increased during their term." That isn't what the clause says, so your reading of it leaves the term proviso as surplusage, whereas reading "no Senator" to mean "no person elected as a Senator" is mere semantics.
11.24.2008 4:57pm
A Guest - Really (mail):
I'd look at it this way. Hillary! was a Senator during a time in which the emoluments of the Secretary of State included "a salary that has a COLA." She is (potentially) to become the Secretary of State during a time in which the emoluments include "a salary that has a COLA." The emoluments haven't increased. It's like owning shares of stock who dividend may go up or down in the future; you don't own more or fewer shares of stock, they just include a different "coupon" value.

-----

Don't all these appointed offices come with a driver and / or free parking? And hasn't the value of those perks risen? Wouldn't this also prevent all congresspeople from taking these appointed offices?

-----

And what about the coming deflation? If the offices don't have cost of living DECREASES, then wouldn't their emoluments have increased? If not, then you can't count a COLA as an increase...
11.24.2008 5:00pm
John Jenkins (mail):
Edward, your interpretation renders the provision a dead letter, since a Senator or Representative must already resign his seat to take any executive position under the balance of Article I, § 6, ¶2:

"and no person holding any office under the United States, shall be a member of either House during his continuance in office."

If the first half and the second half are to have independent meaning, then you are wrong. I would suggest, therefore, that your interpretation is wrong and the clause has independent meaning as described above.
11.24.2008 5:06pm
GatoRat:
It appears plain that so long as the Senator or Representative resigns the seat before the date of appointment,

You think the writers of the constitution didn't think of this? They did, which is why they used the words "during the Time for which he was elected." To assume otherwise makes the provision completely useless.
11.24.2008 5:08pm
Philistine (mail):
"No Senator or Representative shall, during the Time for whichhe was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time."

Just going on the text, this clearly doesn't apply to Hilary...
11.24.2008 5:10pm
Mike G in Corvallis (mail):
I don't see why people are equating "during the Time for which he was elected" with "the maximum duration of a single term of office."

It seems to me that when a Senator resigns (or dies!) his or her term is over, whether or not it has achieved its theoretical maximum duration. Similarly, the term of a Senator who fills a vacancy begins when he or she assumes the office, and does not last the maximum of six years. (Although Mary Frances Berry might disagree.)

I think that in the phrase "No Senator or Representative shall, during the Time for which he was elected," the word "elected" refers to the Senator or Representative and not to the maximum allowed duration of his or her term. A person is elected to an office, not to a fixed time.

In other words, "the Time for which he was elected" lasts as long as the holder of the office damn well wants it to last, up to the maximum extent of the term as specified in the Constitution. And when you quit, your Time is over.
11.24.2008 5:13pm
Philistine (mail):

Just going on the text, this clearly doesn't apply to Hilary...


The point was already noted by Professor Paulson in the new post. Ooops.
11.24.2008 5:15pm
Simon Dodd (mail) (www):
Mike, that's a tortured reading. The time for which someone is elected is the term of office. If I am elected to the Senate, the time for which I was elected is six years; that I may leave sooner of my own volition changes the period that I serve, not that for which I was elected.
11.24.2008 5:17pm
Milhouse (www):
Alex R, what on earth are you talking about? What, in your opinion, made Cheney a resident of Texas at the time of the 2000 election? The mere fact that he had been living there for a few years before then? Can a person not change his place of residence? If not, then how did he become a Texas resident in the first place? He moved to Texas when he took a job there; when he quit that job to run for vice president, he moved back to Wyoming. What could be more natural? What ties did he still have to Texas? Was he actually living there? No. Did he intend to return there? No. So what, then? The constitutional provision was entirely fulfilled; he was not a resident of Texas, so the electors for that state were entitled to vote for both him and Bush.

Now how does that compare to the current question? The only solution I can see is for Congress to retroactively repeal the increase in the SoS's salary going back to 2001, and instead grant the difference to Powell and Rice as a one-time bonus (rather than require them to refund it, which would probably be unconstitutional, and would certainly be unfair).
11.24.2008 5:26pm
Bama 1L:
Not that my opinion matters, but I reached the "tortured" reading, too. This reminds me of the debate seen on this board from time to time about what "eligible" means in the 12th Amendment.

Someone who isn't facing exams might want to explore what phrases the Framers used to express the two meanings be urged here, "duration of term to which one was elected" and "time of service in elected office."
11.24.2008 5:27pm
Village Idiot:
Pardon my ignorance r.e. the Saxbe work-around, but didn't Hugo Black go directly from the U.S. Senate to SCOTUS? If in fact Black's appointwent was unconstitutional in retrospect, does that mean that everything he did and wrote during his stellar 30+ year tenure on the Court is now retroactively null and void?

I think not. And I personally think that SCOTUS would benefit greatly from having more associates with political backgrounds.

Thus, in retrospect, Reagan should have appointed Hatch (and I say this as a liberal). He'd have been happier, the Right would have been happier, and we would never have had Mr. Swing-Justice Kennedy for the Right to complain about.
11.24.2008 5:29pm
KD:
Village Idiot, Hugo Black was not appointed to "civil Office." The clause does not apply to judicial appointments.
11.24.2008 5:38pm
Milhouse (www):
Village Idiot: Black would only have been ineligible if the salary of a Justice was increased between 4-Mar-1933 and 19-Aug-1937. Considering the economic situation during that time, I doubt there was any increase.

In my previous comment I mistakenly wrote that the problem involves increases in the SoS salary since the beginning of 2001. The correct year is, of course, 2007, when Clinton's current term began. So Powell would not be affected by a retroactive repeal.
11.24.2008 5:41pm
Bama 1L:
How do we know that judges don't hold civil office?
11.24.2008 5:43pm
Tony Tutins (mail):

the presidency is an elected office, not an appointed one.

Election is merely one way that one can be appointed, as the upcoming Electoral College reminds us. The Constitution mandates that electors be appointed by each state in the manner that its legislature may direct. In most states, the manner of appointment is by election. (Slates of electors corresponding to the candidate receiving the most votes are appointed electors.) I presume the last umpteen meetings of the Electoral College were in compliance with the Constitution. The ambiguity of whether "election" is distinct from "appointment" means we'd have to study the original meaning to decide.
11.24.2008 5:46pm
Tony Tutins (mail):

Hugo Black was not appointed to "civil Office." The clause does not apply to judicial appointments.

So, Supreme Court Justice is a military office, as contrasted to civil? I could see how Attorney General would have a military bearing, but not Supreme Court Justice.
11.24.2008 5:48pm
Donald (mail) (www):
Wouldn't the one person with the best standing to file suit challenging the appointment be Bill Richardson? After all, it was widely reported that the top three for SOS were Clinton, Kerry, and Richardson. Kerry has the same problem as Clinton, so but for the Clinton appointment, Richardson would be the next SOS.

Not that he's going to sue or anything, but interesting to contemplate, at least.
11.24.2008 5:49pm
Oren:

Oren: As I read the text, expulsion or resignation won't solve the problem. It says "during the Time for which he was elected". If you interpret "No Senator or Representative" to only mean those not resigned or expelled, then "during the Time for which he was elected" becomes mere surplussage.

That's absurd, the extra words make it clear that only current Senators and Representatives (as opposed to all that have served in the Senate or House at any time) are excluded -- not surplus.

I can't read a clause that acts on "No Senator or Representative ...." to act on people that are neither Senators nor Representatives no matter how hard I try.
11.24.2008 5:53pm
Dilan Esper (mail) (www):
I told myself I would stay out of the comments on this post, but in response to the comment of Dilan Esper, I would simply respond that my law review article (which I suggested anyone interested should read before assessing my arguments) lays out the percevied connection (at least by some Framers) between the Emoluments Clause and the size of the federal bureaucracy. In particular, see pages 164-68.

It isn't very convincing, though. After a bunch of conclusory statements, you quote some statements from the framers about the awfulness of members of the British Parliament going on to serve in sinecure ambassadorships to tiny countries, and you cite to the fact that the clause originally mentioned service in state government but that provision was taken out.

Neither of those facts proves ANY general intent to control the size of the federal bureaucracy. Obviously, what the framers were talking about with respect to ambassadorships were featherbedded positions in unimportant countries. They weren't citing any other potential position in the federal government (they didn't even know what a federal "bureaucracy" WAS-- that conservative talking point wasn't even invented until years later), and they weren't worried about these congressmen increasing the size of even the Foreign Service-- they were talking about creating cushy make-work jobs for Congressmen! And that's why they banned it throughout the federal government.

And that's also why they took out the provision on state governments. It obviously wasn't because this would seriously affect the size of state government vis-a-vis the federal government-- it clearly wouldn't-- but because there wasn't a danger that states could create the sorts of cushy ambassadorships for congressmen, due to the separation of powers and the independent authority of legislatures.

With respect, this paper is a classic example of a make-weight lawyer's argument, which seriously misrepresents legislative history to support the author's preordained conclusion.
11.24.2008 5:54pm
LA denizen:

So, Supreme Court Justice is a military office, as contrasted to civil? I could see how Attorney General would have a military bearing, but not Supreme Court Justice.


Tony, let me guess, you also don't pay taxes?

"Military" is not the only adjective that falls outside the category of "civil." Here, the distinction is between executive office and all other offices (elected, etc); it has nothing to do with the military.
11.24.2008 6:12pm
patrick joy:
This does not apply. The salary was not technically increased, the cola just keeps the pay up with inflation. So technically, the salary is the same. Also, I beleive there was a suit brought in the 90's over Congressional pay increases and the court found that for the provision of the amendment, the salary was increased at the time of the act passing, not at the time the yearly increase is computed.
11.24.2008 6:46pm
A.S.:
The Saxbe fix seems to me to cure the problem. I find Tushnet's reading ("[R]escinding the increase does not mean that the salary 'shall not have been increased' it simply means that the salary shall have been both increased and reduced during the term.") to be tendentious.

That said, I don't understand why there is some assumption that this won't be litigated. It seems to me that anyone who suffers an adverse decision from the Clinton State Department would have grounds to challenge the Clinton's eligibility. Let's say you apply for a visa to go to Cuba; when it gets turned down by Secretary of State Clinton, why wouldn't you have standing to litigate the matter? It seems to me no different than, say, that Constitutional challenge to the PCAOB in Free Enterprise Fund v. PCAOB -- there an accounting firm got a bad review by the PCAOB, and the court seemed to think the firm had standing. Why not here?
11.24.2008 6:58pm
Tony Tutins (mail):

Here, the distinction is between executive office and all other offices (elected, etc

No. For example, Harding's AG Daugherty researched whether the Ineligibility Clause would prevent Senator Kenyon from being appointed Circuit Judge. Daugherty said no, because the salary increase for judges took effect in the previous term. 33 Op. Att'y Gen. 88 (1922).
11.24.2008 7:12pm
Tony Tutins (mail):
Also consider Amendment XIV, Section 3, which divides "any office under the United States" into civil and military. (One could argue that Senator, Representative, or Presidential electors were neither civil nor military offices.)

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
11.24.2008 7:22pm
Mike G in Corvallis (mail):
I wrote:
It seems to me that when a Senator resigns (or dies!) his or her term is over, whether or not it has achieved its theoretical maximum duration. Similarly, the term of a Senator who fills a vacancy begins when he or she assumes the office, and does not last the maximum of six years. (Although Mary Frances Berry might disagree.)

I think that in the phrase "No Senator or Representative shall, during the Time for which he was elected," the word "elected" refers to the Senator or Representative and not to the maximum allowed duration of his or her term. A person is elected to an office, not to a fixed time.
Simon Dodd wrote:

Mike, that's a tortured reading. The time for which someone is elected is the term of office. If I am elected to the Senate, the time for which I was elected is six years; that I may leave sooner of my own volition changes the period that I serve, not that for which I was elected.

Hrmph. I see your interpretation as tortured. The office to which one is elected has a fixed maximum term, but the time in office may be less than this maximum. For that matter, I don't see why the time in office can't be more than the maximum for a single term, if the officeholder serves multiple terms.

"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time."

My previous question has some bearing on this. Consider: Senator X is elected in 2000, receives a pay raise in 2002, is re-elected in 2006, and is nominated for Secretary of Pork in 2009 without having received a pay raise during the two years served of his second term. Were the "Emoluments" that Senator X received "encreased" during the Time for which he was elected? Is Senator X eligible for the Cabinet position, or not?
11.24.2008 7:51pm
rbf:
It seems to me that too little attention is being paid to the manner in which the salary increases. It's an automatic increase that occurs annually based on a law that was passed before Clinton took office (albeit an increase that the President has the statutory authority to stop).

Ignoring, for the moment, the ability of the president to prevent the increase, it seems to me that the Emoluments could be considered to have remained the same: Specifically, they are some dollar amount multiplied by some measure of inflation. Sure, the multiplier changes each year, but even if that weren't the case -- and the number of dollars remained the same year after year -- the value of those dollars would almost certainly fluctuate.

If the statute specified that the Secretary of State be paid a specified number of ounces of Gold, and that number was a constant, everyone would agree that the Emoluments wasn't violated by a Senator taking a position in the cabinet, even though the value of that gold (in Dollars) might have substantially appreciated.

Now, suppose that, instead of being paid in Gold, the statute instead specified that the payment be in Dollars. Specifically, a number of Dollars equal to the value of some amount of Gold. There's no substantive change -- Dollars and Gold are readily exchangeable. Does the process change constitute a violation of the Emoluments clause?

That is, essentially, what we have today. Except that instead of being paid in Gold converted to Dollars, the Secretary of State is paid in a basket of commodities converted to Dollars.

Except that's not exactly what we have, because the measure of inflation used is the Employment Cost Index, which isn't based on costs of any commodities, but, rather, on wages and salaries.

But, still, the underlying point remains: There is no constitutional prohibition on the value of the emoluments increasing in real terms -- maintaining a constant (Dollar-denominated) salary in the fact of deflation would not violate the Emoluments Clause. Nor is there a prohibition on the value of the Emoluments increasing in Dollar terms (see the payment in Gold example above).

That raises the question: what is prohibited?

I would argue that when when the emoluments are spelled out in a manner that provides a mechanical process for determining what they are -- in this case, take a certain dollar amount, multiply by an index that varies from year to year -- that the subsequent application of that process does not constitute a change in the emoluments. (That also seems consistent with the intent of the clause -- preventing a senator from bumping the Salary of a position he plans to take and then promptly benefiting from that.)

There are some counter arguments, but none that seem obviously persuasive to me:

One would be that, since the president has the authority to prevent the increase from occurring, and since that's not functionally different (although it's politically different) from the default being no COLA and the president having the authority to order one (albeit only in a pre-determined amount), effectively, the president is ordering the increases, and that is an increase in the emoluments. (I think we've already established that it's not Congress that has to increase them for the clause to apply.)

Another would be that the executive branch, in calculating the ECI, has effectively increased the enoluments. (This argument, I think, is weak, because the calculation of the ECI is substantially specified by Congress in a way that didn't change during Clinton's term.)
11.24.2008 7:57pm
Bama 1L:
I'm still waiting for an explanation why "civil office" would not include federal judge.

If I were a legislator creating a cushy job for myself, I could do no better than Article III judge, particularly if my buddies and I had just created a bunch of new high-pay, low-work judgeships.

I think the distinction between civil and military. If there is a war on and General Warhorse is the best leader there is, we won't let the fact that he's currently serving in Congress and just voted in a pay raise for officers keep him from serving where the country needs him. Thus we make the law not apply to military offices. Anything not military is civil.

(I still think "during the Time for which he was elected" is a circumlocution for "while serving in office," but that's a different issue.)
11.24.2008 8:31pm
Simon Dodd (mail) (www):
Mike, I just don't agree. I don't think your reading makes sense; obviously I think mine does. Still, given the disagreement, I suppose we could say (at least arguendo) that the clause's text is ambiguous -- in which case we look to purposes and history, which, as I explain in a comment here, confirm my reading.
11.24.2008 9:07pm
Simon Dodd (mail) (www):
11.24.2008 9:09pm
Xenocles:
Here's a different question: could this apply to the President or Vice President? My friend says it doesn't because civil refers to appointed, not elected offices, but I'm not 100% sold on that.
11.24.2008 10:30pm
Smokey:
ShelbyC:
John Jenkins, I agree that that's how it should be interpreted, but it's not the literal meaning. And when you're saying things like BZ-Z-Z-Z-Z-ZT!! you should have your ducks in a row.
ShelbyC's reading comprehension is at about the the same level as his Constitutional comprehension; I was the one who wrote "BZ-Z-Z-Z-Z-Zt!!, not Mr. Jenkins.

And sorry, Shelby, but that is the literal meaning.

The Hillary/0bama worshippers are tying themselves in knots saying that black is white, down is up, evil is good, and the authors of the Constitution had their fingers crossed behind their backs when they wrote that "No Senator or Representative, shall during the Time for which he was elected, be appointed..."

Hey, let's just forget about the explicit Constitutional language, and let the Dear Leader call the shots.

Sounds like a plan, huh?
11.24.2008 10:38pm
dlg948 (mail):
Obviously "Snaphappy" is not a scholar of the English Language! If he was he would know that encrease (thew more archaic term) and increase (the modern form) are interchangeable! HELLO
11.24.2008 11:32pm
Commonsense Comment (mail):
I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

The clause is still better read as dealing with self-dealing.
11.25.2008 12:33am
Jim Carlile (mail):
"Mark Tushnet put the matter with great concision and force a few years ago: "[R]escinding the increase does not mean that the salary 'shall not have been increased' it simply means that the salary shall have been both increased and reduced during the term.""

Disagree. If the increase is eliminated by its retraction, then there is ultimately no increase. A retraction is much more than a 'reduction," it is a removal.

The key point would be to make sure that the retraction takes place while Hillary is still in office. I do agree, though, with conservative commentators that a COLA is still an "encrease," and that Hillary's simple resignation would not solve this problem of emoluments.

It would make the clause completely meaningless, because every legislator would just quit to get the booty.
11.25.2008 5:27am
LM (mail):

“[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.”

The emoluments shall have encreased during such time, but they shall have been encreased when the COLA was enacted.
11.25.2008 7:46am
David Schwartz (mail):
That's absurd, the extra words make it clear that only current Senators and Representatives (as opposed to all that have served in the Senate or House at any time) are excluded -- not surplus.
That simply supports my position. If the extra words are needed to make it clear that Senators and Representatives mean current Senators and Representatives, then the first clause can't mean that all by itself. Again, if it does, the time clause is again surplussage.

I can't read a clause that acts on "No Senator or Representative ...." to act on people that are neither Senators nor Representatives no matter how hard I try.
See, you don't believe your own argument. If "no Senator or Representative" cannot act on past Senators or Representatives, the Time clause is surplussage. What if a law said "no President shall be entitled to Secret Service protection for more than 24 years absent an act of Congress". Would you really argue this has no effect on secret service protection for former Presidents?

You would be right if there were no time clause. Without a time clause, it would certainly mean current Senators and Representatives during their time in office. But it has an explicit time clause that explicitly covers time they are not in office.
11.25.2008 8:11am
David Schwartz (mail):
Oh, and one more thing. Permitting a resignation to cure it would completely defeat the entire point of the act. It would prohibit absolutely nothing but require a trivial formality. In effect, your reading renders the entire prohibition Constitutional surplussage.
11.25.2008 8:11am
Will Krogh (mail):
Whether "shall have been encreased" means "on net" depends on whether, in the Framers' day, the word "encreased" could be used intransitively. Bear with me.

In contemporary usage, the verb "to increase" can be used either transitively or intransitively: I can increase something (transitive), or a thing can be increased (still transitive, but now passive), or a thing can simply increase (intransitive). The most natural and direct way to say that something has increased on net is to say that it has increased. If I add the auxiliary "been," then I must intend some distinction vis-à-vis the meaning without that word. Perhaps I mean to exclude the meaning "on net."

But now imagine that "to increase" is exclusively transitive. Now it makes no sense to say that an emolument "has increased." That would be ungrammatical in the same way as the sentence, "The building has demolished." The simplest language to use in the Emoluments Clause would thus have been "has been encreased." (Make that an 18th-century "shall"-form subjunctive, and you get "shall have been encreased.") No distinction vis-à-vis the intransitive "has encreased" can have been intended if no such construction existed.

So, the question is, did it?
11.25.2008 12:38pm
Tony Tutins (mail):

Permitting a resignation to cure it would completely defeat the entire point of the act. It would prohibit absolutely nothing but require a trivial formality.

Especially in the Nineteenth Century, Senators became Secretaries of State after their terms expired naturally (as well as during their terms). What was the point of letting a Senator become Secretary of State in March, when the salary for that office increased in February? All that the clause does is deny the President the aid of a current Congressperson.
11.25.2008 1:58pm
Bob in SeaTac (mail):
Don't worry. It will be ignored. The SCOTUS will decide that no one has standing to appeal.

Sort of like no one has standing to appeal Barak Obama's birth certificate. And who is to believe Obama's Kenyan grandmother who claims she was present at this birth in Kenya?

Nothing to see here. Move along.
11.25.2008 2:45pm
non-native speaker:
If the Emoluments Clause were "to disincentive for regular increases in the salaries of federal offices", would it be possible to limit its application to Senators or Representatives that voted for such increase?

If the Clause did not exclude Senators or Representatives that voted against the increase, I am doubtful that such disincentive purpuse was actually constitutionalized.
11.25.2008 3:05pm
Mark F. (mail):
And who is to believe Obama's Kenyan grandmother who claims she was present at this birth in Kenya?

Nobody unless you believe the State of Hawaii forged a birth certificate and a false birth notice was placed in the Honolulu Advertiser in 1961.

In any event, the child of an American citizen is considered a natural born citizen even if born outside the United States. You are either a naturalized citizen or a natural born one--there is no other category and children of American citizens born abroad are never naturalized.
11.25.2008 3:52pm
Edward Sisson (mail):
I don't know whether anyone is still checking this comment thread, but will add the following anyway. On the issue of whether the clause applies only to the appointment of sitting members of Congress (which I asserted), I think John Jenkins makes a good rebuttal when he said above:

"Edward, your interpretation renders the provision a dead letter, since a Senator or Representative must already resign his seat to take any executive position under the balance of Article I, § 6, ¶2: 'and no person holding any office under the United States, shall be a member of either House during his continuance in office.' If the first half and the second half are to have independent meaning, then you are wrong. I would suggest, therefore, that your interpretation is wrong and the clause has independent meaning as described above."

It is possible to spin out a few tenuous arguments to maintain my original position, but I don't think any of them really work or are worth presenting here. In light of the clause John cites, I would now say that the provision we are talking about matters only in the case of former members of Congress, since the case of current members is taken care of as regards all offices by the clause he cites, while the clause we are talking about applies only to a subset of such offices, namely, those in which the emoluments increased during a specific time period. Thus a Hillary resignation prior to appointment would not free her from the clause.

I would also like to correct a technical error in my prior post, in which I said that the Senate only has the power to confirm persons appointed by the President. Incorrect; the President nominates, then the Senate confirms, and then the President appoints. Technically, therefore, the clause we are talking about would place no explicit bar on the President nominating, and the Senate confirming, a person described by this clause; the barrier arises because the President could not then complete the process by appointing that person to the office. Of course, since there is no point to nominating and confirming a person who could not then be appointed, no nomination would ever be done in the first place. However, in the event there is litigation over such a case it would be necessary to be precise in identifying the action that was unconstitutional -- the President's post-confirmation appointment.
11.25.2008 6:44pm
AnAverageAmerican (mail):
Professor Volokh,

You choose a very poor analogy regarding the price of a computer. I'm a senior technology professional and I have never had to ask if the price of a computer has increased in the past year. That's true whether I meant, "at any time in the past year", or, "right now". Given Moore's Law, the cost of a specific configuration of a computer always falls.

I don't disagree with your point, but the analogy is terrible. It would have been better to use a gallon of gasoline, or an ounce of gold ... any commodity whose price fluctuates in both directions. Computers only decrease in price.
11.25.2008 11:26pm
Edward Sisson (mail):
I see that this issue is getting wider and wider play on the internet, so on the issue of standing to challenge the constitutionality of a Clinton Secretary of State appointment, here are a couple of more avenues.

1) Pay claims by dismissed subordinates. One way in which issues like this get brought into the courts is not a direct action against the office-holder, but a suit in the Court of Federal Claims seeking salary or money owed a person who was dismissed or otherwise lost money as a result of an action by a particular official. The challenge is grounded on the official not having the actual authority to take the action. Court-martials prior to the 1951 Uniform Code of Military Justice, for example, were outside the court system, but dismissed officers could sue for back-pay and challenge the court-martial in connection with the back-pay suit. Also, back-pay complaints based on a failure to promote a military officer can occur; see Lt. Law v. US, a 1991 Claims Court case by Judge Andewelt (I was the law clerk on that case).

2) Civil false claims act cases. A person collecting a salary and benefits from the government by claiming to be an officer of the government, but who is not actually such an officer, might be at risk of a false claims action. In certain circumstances, private individuals can bring such cases and the Department of Justice can then decide whether to assume control of the case. If I were personal legal counsel to Hillary Clinton (as an individual, not as a Senator), I would devote careful and comprehensive legal research to this issue.
11.26.2008 8:41am
Bill Zimsky (mail):
I apologize if someone has already raised the standing issue, but who could bring such a suit?

I remember sitting in the Tenth Circuit Court of Appeals a few years ago waiting for my argument and hearing an oral argument by William Perry Pendley of Mountain States Legal Foundation arguing against automatic COLA pay raises for Senators and Representatives as unconstitutional under the 27th Amendment. Bob Schaffer, who was then a member of the House, brought the suit challenging the pay raise.

The Tenth Circuit held that Schaffer lacked standing. The opinion recognized that no one may have standing to enforce this amendment, but that's the way it was. Here's the cite: 240 F.3d 878
11.26.2008 2:06pm
Rich Rostrom (mail):
The Emoluments Clause was raised in the case of Hugo Black, because (contra Milhouse) the pensions of SCotUS Justices had been increased.

The challenge was made by Sen. Warren Austin (R-VT) but was set aside by the Judiciary Committee.

Harking back to the past - it occurs to me that an outgoing Congress/President could have used the clause to mess with the appointing power of an incoming President. Suppose it was known that President-elect Bullfinch had promised to appoint Sen. Claghorn Secretary of the Treasury in return for his support for the nomination. The lame-duck Congress could increase the salary of the Secretary by $1/year, and hey presto! Claghorn becomes ineligible.
11.26.2008 2:15pm
Paul Andrew Mitchell, Private Attorney General (mail) (www):
See also:

DRAFT Bentsen challenge


Sincerely yours,
/s/ Paul Andrew Mitchell, B.A., M.S.
Private Attorney General, 18 U.S.C. 1964(a)
Criminal Investigator and Federal Witness: 18 U.S.C. 1510, 1512-13

All Rights Reserved without Prejudice
11.29.2008 10:03am