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More on Hillary Clinton and the Emoluments Clause:

From Prof. Michael Stokes Paulsen, author of Is Lloyd Bentsen Unconstitutional?, 46 Stanford L. Rev. 907 (1994) (some paragraph breaks added, some glitches fixed with Prof. Paulsen's advance permission):

Thanks for alerting me to this fascinating (and fun) issue! I've played in this particular sandbox before [as to Lloyd Bentsen], and am amused to see it return in slightly different form.

So, "Is Hillary Clinton Unconstitutional?" In a word, Yes -- or, to be more precise, a Secretary of State Hillary Clinton would be unconstitutional.

The Emoluments Clause of Article I, section 6 provides "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." As I understand it, President Bush's executive order from earlier this year "encreased" the "Emoluments" (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which "the Emoluments whereof shall have been encreased" during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment ... if the Constitution is taken seriously (which it more than occasionally isn't on these matters, of course).

Are there any legitimate escape hatches to this constitutional bar? Let's consider them quickly. First, does the fact that the emoluments of the office were increased by executive order, pursuant to a general authorizing statute, take the case out of the Emoluments Clause rule? Plainly not. The clause is written in the delightfully ambiguous passive voice that we always discourage in our law students. "shall have been encreased ... by whom, exactly?!" The clause does not limit the application of its rule to direct statutory enactments.

In the world in which legislation may be accomplished by delegation of general quasi-lawmaking authority to executive branch officials, there is no difference in legal principle between a direct legislative enactment and an executive order pursuant to specific legislative authorization. If pay increases may be accomplished, legally, by executive order, then those increases in emoluments fit within Article I, section 6's rule. If those increases occurred during the time for which Hillary Clinton was elected to the U.S. Senate, they disqualify her, regardless of when the general statutory authorization for such increases was enacted.

But wait! Wasn't the (probable) purpose of the Emoluments Clause to prevent congressional self-dealing in the form of creation of offices (or increasing their emoluments) and hoping to profit thereby by being appointed to such office? And isn't that purpose plainly inapplicable here? Perhaps. But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.

As I wrote in something of a sequel to Lloyd, if purposes were taken as rules, and if the meaning of texts "evolve" over time, then "thirty-five years of age" does not mean "thirty-five years of age" but stands instead for an evolving principle of maturity. In 1996, this would have meant that the lawful President of the United States was Strom Thurmond, not Bill Clinton. Michael Stokes Paulsen, Is Bill Clinton Unconstitutional? The Case for President Strom Thurmond, 13 Const. Comment. 217 (1996). So too, the fact that the Emoluments Clause catches in its snare the (possibly) blameless (for this at least) Hillary Clinton does not mean that its constitutional command can be ignored with impunity.

Then there's the infamous "Saxbe Fix" precedent, which I discuss in Lloyd. Couldn't Congress pass a repealing statute, or President Bush (or even President Obama) rescind the executive order, selectively, as to Hillary and make everybody happy? Nope: The clause forbids the appointment of someone to an office the emoluments whereof "shall have been encreased." A "fix" can rescind the salary, but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.

Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but "standards" or "principles" to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State. I wouldn't bet on this actually preventing the appointment, however. It didn't stop Lloyd Bentsen from becoming Secretary of State. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution's actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don't know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.

There is one last chance for Hillary. The Emoluments Clause provides that its rule applies to any senator or representative, "during the Time for which he was elected." Perhaps the rule of the Emoluments Clause does not apply to female U.S. Senators. It's an out-there argument, of course (Hillary and I both went to Yale Law School). But I think I would prefer even this (unpersuasive) pronoun pounce to the Saxbe Fix, or to ignoring the text of the Constitution entirely.

My views are somewhat different (and less certain), and I discuss them briefly at the end of the earlier post; but I thought that I would use this post to pass along Prof. Paulsen's views.

Simon Dodd (mail) (www):
Looking through the comments to the earlier post, it's stunning to see how many people think (wrongly) that this can be cured by Clinton's resignation, notwithstanding the clear text of the clause and OLC precedent stretching between at least 1883 and 1996.
11.24.2008 5:00pm
HoyaBlue:
"Well of course I can take the office. My salary was increased, not encreased. QED."

Wat, no dice on that one?
11.24.2008 5:01pm
HoyaBlue:
*What
11.24.2008 5:02pm
Kazinski:
But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.

What refreshing logic, why isn't this standard applied to the 2nd Amendment?

Answer: The same reason it won't be applied her to Hillary: because it isn't convenient.
11.24.2008 5:13pm
Brian K (mail):
But wait! Wasn't the (probable) purpose of the Emoluments Clause to prevent congressional self-dealing in the form of creation of offices (or increasing their emoluments) and hoping to profit thereby by being appointed to such office? And isn't that purpose plainly inapplicable here? Perhaps.

and herein lies the problem with originalism. which form of "originalism" should be chosen here: original intent or the plain letter of the text? which method one chooses, as has been evidenced in many a threads on this site, appears to depend on which outcome you prefer.
11.24.2008 5:17pm
Brian K (mail):
or as not applicable to Democratic administrations,

we already know it isn't applicable to republicans so i don't see any problem with leveling the playing field.
11.24.2008 5:18pm
MCM (mail):
Kazinski, the better question is, who's going to apply it? In other words, who has standing to do anything about this? There was a rather long discussion about it in the comments to the previous post but I didn't see any really satisfactory answers. Which is pretty much the same reason nobody bothered too much about John McCain not being a natural born citizen: there was a good argument that he wasn't, but nobody cared, and if they did care, they didn't have standing anyway.
11.24.2008 5:24pm
Simon Dodd (mail) (www):
MCM, no one has standing now, but if she is appointed, I would think that any action she takes in which the Secretary has any discretion at all (and arguably, some in which they don't) would have the potential to provide injury, and thus standing.
11.24.2008 5:28pm
SailorDave (www):
This is really just an illustration of why lawyer != economist. Suppose instead the office had a fixed salary in dollars, and a dollar was defined by law to equal 1/32nd of an ounce of gold. if Congress had revalued the dollar to 1/20th of an ounce of gold but kept the dollar salary the same, would the salary have 'encreased'?

Or what if congress prior to Hilary's election specified that the salary would increase automatically by $1 per year? would that disqualify all future Senators from appointments as long as the automatic-increase law remained in effect?
11.24.2008 5:29pm
MCM (mail):
And then you're asking a judge to remove the sitting Secretary of State from office. Good luck with that.
11.24.2008 5:30pm
Simon Dodd (mail) (www):
MCM - fine, if you're conceding standing (at least arguendo), tell us why it's non-justiciable. Or give us something else that could be used as an excuse by a judge who doesn't want to order the SecState removed, yet has a plaintiff who ineluctably has standing and a SecState who ineluctably wasn't eligible to be appointed. What's the escape hatch once you concede both jurisdiction and the violation itself?
11.24.2008 5:33pm
Milhouse (www):
There is a fix. Congress can retroactively repeal the increase in the SoS's salary, back to what it was at the beginning of 2007, when Clinton's current term began. Technically this would require Rice to return the extra money she had received, which wouldn't be very fair, and probably illegal; that could be fixed by granting her a one-time bonus equal to that amount.
11.24.2008 5:35pm
MCM (mail):
Mr. Dodd - I think you are confusing my concession of standing with what a judge will actually do when faced with this nightmare.
11.24.2008 5:39pm
The River Temoc (mail):
Looking through the comments to the earlier post, it's stunning to see how many people think (wrongly) that this can be cured by Clinton's resignation, notwithstanding the clear text of the clause

I've read the text a couple of times. Can you please explain to me why the problem isn't cured by Clinton first resigning, and then receiving the appointment? (This is not snark.)
11.24.2008 5:47pm
Simon Dodd (mail) (www):
MCM, what I'm saying is that the prediction you're making about "what a judge will actually do when faced with this nightmare" -- and I agree with your choice of "when" -- is too vague. Of course their instinct will be to stay out of this mess, and of course, if they possibly can, they will file an opinion that boils down to "I'm not touching this with a ten foot pole." What they won't do is file an opinion that says so in as many words. I'm asking what credible doctrine you think they can use to dress up the ten foot pole opinion?

As I said here, it seems to me that there's a interpretative maneuver going on similar to that condemned by Justices Scalia, Brennan, Marshall and Stevens condemned in Maryland v. Craig: abstracting from the restriction to the purpose, concluding that the purpose isn't offended, and then eliminating the restriction. I tend to agree with Easterbrook: "the judicial branch serves best by enforcing enacted words rather than unenacted (more likely, imagined) intents, purposes, and wills" (Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1120 (1988)). That's not to say that purpose has no place, but purpose should be used to illuminate ambiguous text, not to get around clear but inconvenient text.
11.24.2008 5:51pm
David Schwartz (mail):
The River Temoc: If a resignation or expulsion could cure the problem, what would the phrase "during the Time for which he was elected" mean? The only sensible reading of the clause is that it includes former Senators and Representatives until their elected term runs out. This is way this has been read since as far back as 1882 ([In re] Appointment to Civil Office).
11.24.2008 6:00pm
Simon Dodd (mail) (www):
The River Temoc - because the text says 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 increased during such time" (emphasis added). Reading that to allow resignation to cure the problem reads the proviso "during the time for which he was elected" out of the clause. If the clause really means nothing more than that one must resign to assume an office whose emoluments have been increased (which raises a question of merger into the incompatability clause, too, doesn't it?), it would mean the same thing if it said only that "no Senator or Representative shall be appointed to any civil office under the authority of the United States the emoluments whereof shall have been increased during their term." Since there is that additional proviso, we have to assume that it means something, and we should assume that it means exactly what it says: that the disability it imposes spans the term for which a person was elected, not the amount of time for which they choose to serve.
11.24.2008 6:07pm
MCM (mail):
Mr. Dodd - In answer to your question, and to pose my own, why is removing the SoS a possible remedy to whatever harm the plaintiff alleges? Unless your actual claim is that you were wrongfully not hired as Secretary of State, I don't understand how you get her ouster as a remedy.
11.24.2008 6:11pm
Anony:
I don't quite follow - if the SoS's salary increase is indexed to inflation, which is caused by the Federal Reserve/Treasury increasing the money supply, then it's hardly an increase in the emoluments of the office. If anything, it's just a prevention of a decrease in her salary.

If a cost-of-living-adjustment increase is an increase in emoluments, then why isn't Congress's annual COLA a violation of the 27th Amendment every single year? And if it is an emolument, and everyone just ignores Congress's continuing violation, why make a big deal about Senator Clinton?
11.24.2008 6:26pm
Melancton Smith:

we already know it isn't applicable to republicans so i don't see any problem with leveling the playing field.


So this is the change we've been promised. Tit for Tat Constitutional interpretation!
11.24.2008 6:27pm
Tony Tutins (mail):
Another comparison between Obama and FDR may be fruitful: Cordell Hull was elected to the Senate in 1930, and resigned upon being named Secretary of State in 1933. Was the SoS's salary increased between 1930 and 1933?
11.24.2008 6:31pm
ReaderY:
The one additional argument I can think of is to argue that the pay for the office was actually "increased" at the time the Congressional statute providing for automatic pay increases was enacted, not at the time the Executive action implementing it occurred.

The argument nay depends on how much discretion the statute gives the Executive. If the statute basically fixes how much the pay should be and the Executive action implementing it is essentially ministerial, the argument would seem a rather sound one. If the statute basically leaves it up to the Executive how much the increase should be or how it should be calculated, the actual source of the increase would appear to be more closely related to the Executive action.

Congress could, I think, fix any problem (at least for future members) by establishing a clear formula for calculating the increases in the statute so that it is clearly the act of Congress, not any future implementing action, that is creating the increase.
11.24.2008 6:39pm
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 6:45pm
jhn:
It is economic ignorance to think that a COLA, or any "increase" that is tied to inflation, is an "increase" in a real sense- particulalry when the increase is auotmatic.

A COLA simply does not trigger the Constitutional text. End of story.
11.24.2008 6:47pm
Lior:
jhn: Unfortunately, US political and legal thinking includes the dogma of the nominal dollar, according to which the value of the US dollar is a constant independent of time. Accordingly, a COLA is a raise, tax brackets are fixed in nominal dollars, and, for a financial dispute to be litigated in federal court, the sum in question must be at least twenty dollars (nominal). An "all dollars are real dollars" Constitutional Amendment would be very helpful but this will never happen.
11.24.2008 7:01pm
The River Temoc (mail):
...because the text says that "[n]o Senator or Representative shall, during the time for which he was elected, be appointed to any civil office...

So what? The phrase "during the time for which he was elected" refers to a Senator or Representative. It does not refer to a former Senator or Representative.

If that had been the intent, the framers could easily have said "no Senator or Representative, and no former Senator or Representative," or they could have expressly prohibited Senators and Representatives for resigning for the purpose of obtaining such appointments.

I also tend to buy the argument that a COLA is de minimis and ought not trigger the clause.
11.24.2008 7:12pm
Oren:

It is economic ignorance to think that a COLA, or any "increase" that is tied to inflation, is an "increase" in a real sense- particulalry when the increase is auotmatic.


Except that this was not automatic, but at the discretion of the POTUS.
11.24.2008 7:40pm
Jacob Berlove:
The he/she argument can't fly, since the masculine at that time, and for more than a century later, was uncontroversially used in instances wehre the gender was unimportant. IMHO, ditto for the Declaration of Independence's "all men are created equal"
11.24.2008 7:41pm
Jacob Berlove:
The he/she argument can't fly, since the masculine at that time, and for more than a century later, was uncontroversially used in instances wehre the gender was unimportant. IMHO, ditto for the Declaration of Independence's "all men are created equal"
11.24.2008 7:41pm
Oren:

And then you're asking a judge to remove the sitting Secretary of State from office. Good luck with that.

No, you'd be asking the judge to void her appointment ab initio. Under the literal reading of the clause, she could not have even been SoS in the first place.
11.24.2008 7:41pm
nicestrategy (mail):

That's not to say that purpose has no place, but purpose should be used to illuminate ambiguous text, not to get around clear but inconvenient text.


And yet many people do not find the text at all clear. A flatly stated assertion does not make for clarity.

2 new plausible interpretations:

When former Senators are being interviewed, they are usually introduced as former Senators but addressed as "Senator."

Thus, "during the time for which he was elected" could easily have been added to clarify that former Senators or Representatives were not to be disallowed from civil offices on the basis of their holding the title of (former) Senator but only the actual current holding of the office. There are a number of places in the Constitution that evoke an 18th century sensitivity to titles.

Similarly, this language might have been intended to prevent an elected Senator or Representative from taking a leave of absence from their elected position, serving in the civil office, and then returning to the Congress. Yes, I know the section goes on to say "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office" but how is a "Member" defined? After all, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." These were not full-time jobs, "Members" of Congress held other jobs when Congress was not in session, so perhaps the language is clarifying that one cannot become a civil officer when Congress is between adjournment (which is under the discretion of the Congress itself) and the next Congress, i.e. Congress cannot adjourn 6 months early and create a bunch of cushy jobs to fill before going home. After all, the Constitution specifically states that each House must meet at least once a year!
11.24.2008 7:42pm
ShelbyC:

It is economic ignorance to think that a COLA, or any "increase" that is tied to inflation, is an "increase" in a real sense- particulalry when the increase is auotmatic


So what does the "A" stand for?
11.24.2008 7:48pm
David Schwartz (mail):
TRT: You didn't address the argument. How does your interpretation not make "during the Time for which he was elected" surplussage? It's a much more sensible read that the first part was meant to include former Senators and Representatives than that the second part doesn't mean anything at all.
11.24.2008 7:49pm
Ted Frank (www):
The pedant in me must point out that Bentsen was secretary of Treasury, not State.
11.24.2008 7:51pm
fortyninerdweet (mail):
This is great fun! I vote for the he/she stratagem.
11.24.2008 7:53pm
Ignatius Riley (mail):
Given the language, it would be interesting to see what would happen to a Senator who wasn't elected, but rather appointed by a governor to fill a vacant seat.
11.24.2008 8:03pm
StrawMan Cometh (mail):
This is interesting, but small beer against the larger question: Will John Roberts require Barry 0 to produce his paperwork before he swears him in?
11.24.2008 8:03pm
nicestrategy (mail):

The he/she argument can't fly, since the masculine at that time, and for more than a century later, was uncontroversially used in instances wehre the gender was unimportant. IMHO, ditto for the Declaration of Independence's "all men are created equal"


Well of course. The point of raising it is to point out that excluding context and usage from consideration is asinine and that meaning derives from purpose in addition to text. None the less, I'm sure we can find someone who will assert that the law is text and that the text is law:

As I wrote in something of a sequel to Lloyd, if purposes were taken as rules, and if the meaning of texts "evolve" over time, then "thirty-five years of age" does not mean "thirty-five years of age" but stands instead for an evolving principle of maturity. In 1996, this would have meant that the lawful President of the United States was Strom Thurmond, not Bill Clinton.

Are we expected to take this seriously? The evolution of meaning is linear? Unlike a bevy of critical words in the Constitution, "age" is not open to interpretation. "He," perhaps unsurprisingly, is open to interpretation (just because there is one interpretation that is far more compelling than the other doesn't mean taking "he" to mean "he or she" isn't an act of interpretation, clearly it is).

That doesn't mean that purposes must be taken as rules, because sometimes you need a clear rule to sort out conflicting interpretations or applications of the purposes. However, when the purpose is abundantly clear and the literal application of the rule is contrary or irrelevant to the purpose, it doesn't destroy the importance of text to take purpose into consideration, nor does it enable an anything-goes approach to reading. Non-lawyers call this common sense.
11.24.2008 8:11pm
Mr. Bingley (www):
So what? The phrase "during the time for which he was elected" refers to a Senator or Representative. It does not refer to a former Senator or Representative.


It refers to the time for which they were elected and not only to that portion of it that they chose to actually serve. The difference is clear.
11.24.2008 8:18pm
MCM (mail):
Oren - A distinction without a difference. Clinton would have been acting as Secretary of State for months, exercising the duties of the office, representing the US abroad, etc., before the suit, and probably during the suit as well.
11.24.2008 8:22pm
Simon Dodd (mail) (www):
ShelbyC, it stands for "allowance," I had thought. As in a "cost of living allowance adjustment."

Ignatius Riley, great question!

The River Temoc, I'm sory, I just don't agree that it's unclear. It seems crystal clear to me, and I don't know how to make it any clearer to you. Still, let's suppose, for sake of argument, that you and the commenter NiceStrategy are right (s/he put it this way: "many people do not find the text at all clear. A flatly stated assertion does not make for clarity."), and the text is ambiguous. I don't see how that helps you. If anything, it digs you into a deeper hole.

To my way of thinking, if the text is ambiguous, we determine the purpose of the text and construe the provision so as to achieve its purpose to the extent consistent with the text. Hart &Sacks, The Legal Process 1169 (Eskridge &Frickey, eds. 1994). Here, the purpose is quite clear. Justice Story put it well: "The reasons for excluding persons from offices, who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness." 2 Joseph Story, Commentaries on the Constitution of the United States § 864 (1833), <i>accord</i> Adrian Vermeule, <i>Veil of Ignorance Rules in Constitutional Law</i>, 111 Yale L.J. 399, 422 (2001). (Story, by the way, recognized that the clause doesn't fit its purposes well; just as I've said it is overinclusive in this situation, Story noted that it's underinslusive in others.)

The purpose of the clause is to prevent members of Congress from benefiting from appointment to offices they've had a hand in creating or enriching, then; it should be entirely obvious that allowing an individual to escape this prohibition by resigning from Congress would thwart that purpose. If the purpose was athwart the text, then the purpose alone would not be sufficient to decide the question. To the extent that there is any ambiguity in the text, however, we can allow purpose to throw light on the text, and I think that the purpose of the clause makes a nonsense of the idea that the defect can be cured by resignation. And I think that <a rel="nofollow" href="http://www.usdoj.gov/olc/peterfinal.htm#N_2_">the fact that the OLC has agreed with me repeatedly since 1883</a> confirms this view.
11.24.2008 8:31pm
Simon Dodd (mail) (www):
ShelbyC, it stands for "allowance," I had thought. As in a "cost of living allowance adjustment."

Ignatius Riley, great question!

The River Temoc, I'm sory, I just don't agree that it's unclear. It seems crystal clear to me, and I don't know how to make it any clearer to you. Still, let's suppose, for sake of argument, that you and the commenter NiceStrategy are right (s/he put it this way: "many people do not find the text at all clear. A flatly stated assertion does not make for clarity."), and the text is ambiguous. I don't see how that helps you. If anything, it digs you into a deeper hole.

To my way of thinking, if the text is ambiguous, we determine the purpose of the text and construe the provision so as to achieve its purpose to the extent consistent with the text. Hart &Sacks, The Legal Process 1169 (Eskridge &Frickey, eds. 1994). Here, the purpose is quite clear. Justice Story put it well: "The reasons for excluding persons from offices, who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness." 2 Joseph Story, Commentaries on the Constitution of the United States § 864 (1833), accord Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 Yale L.J. 399, 422 (2001). (Story, by the way, recognized that the clause doesn't fit its purposes well; just as I've said it is overinclusive in this situation, Story noted that it's underinslusive in others.)

The purpose of the clause is to prevent members of Congress from benefiting from appointment to offices they've had a hand in creating or enriching, then; it should be entirely obvious that allowing an individual to escape this prohibition by resigning from Congress would thwart that purpose. If the purpose was athwart the text, then the purpose alone would not be sufficient to decide the question. To the extent that there is any ambiguity in the text, however, we can allow purpose to throw light on the text, and I think that the purpose of the clause makes a nonsense of the idea that the defect can be cured by resignation. And I think that the fact that the OLC has agreed with me repeatedly since 1883 confirms this view.
11.24.2008 8:32pm
Simon Dodd (mail) (www):
Oops - sorry for the double-post!
11.24.2008 8:32pm
Vermont Guy (mail):
Maybe there is an opening for a Marbury v. Madison type ruling here.

Couldn't a judge just rule that executive orders are unconstitutional?

Problem solved.
11.24.2008 9:01pm
Brian K (mail):
So this is the change we've been promised.

when you can provide a fairly exact definition of the change obama was talking about then you'll have a point. until then it is just the trolling of a bitter person, like all the others who make the response you just did.
11.24.2008 9:23pm
Brian K (mail):
The he/she argument can't fly, since the masculine at that time, and for more than a century later, was uncontroversially used in instances wehre the gender was unimportant.

this is exactly what i was talking about in my much earlier post. here you are slipping from interpreting the text as it is to original intent (although i agree with you about the usage of he.) just going strictly by the text, as most of the other arguments are, then the restriction would only apply to a "he".
11.24.2008 9:32pm
BGates:
when you can provide a fairly exact definition of the change obama was talking about then you'll have a point.
And the score be 1-0 in favor of Mr Smith, since Obama has yet to provide a fairly exact definition of the change Obama was talking about.
11.24.2008 9:43pm
Brian K (mail):
BGates,

that makes it a meaningless phrase and makes smith's complaint equally meaningless.
11.24.2008 10:11pm
cthulhu (mail):
I find this discussion very interesting, but I wonder why it is limited to the Secretary of State. Aren't President and Vice President "civil Office under the Authority of the United States"?
11.24.2008 10:42pm
Seerak (mail):
US political and legal thinking includes the dogma of the nominal dollar, according to which the value of the US dollar is a constant independent of time.

Certainly; it reflects the expectation that the monetary unit be commodity-based. Of all the consequences of fiat currency, this has to be one of the most bizarre and arcane I've ever seen.
11.24.2008 10:44pm
LN (mail):
After seeing Obama's early selections, I feel very betrayed.

I feel betrayed by all the right-wingers on this site. I assumed they were intelligent commenters who understood American politics. And so when they expressed concern about Obama's possible election, I listened to them. I don't pay too much attention to politics myself, so I trusted their superior knowledge and judgment. They were serious people who seemed to know what they were talking about.

They predicted a radical socialism the likes of which America had never seen. They predicted Obama might try to become a dictator. They predicted Obama would end capitalism. They predicted he would surrender to terrorists. They predicted all sorts of horrible things. I listened to them and was genuinely scared.

And now Obama has been elected. And what do they say? They say that he's not going to change anything at all. They say he's going to appoint a bunch of experienced people who served during the last Democratic administration, a time of relative peace and prosperity. In other words, all my fears, all my worries about the future -- it was all wrong! I was so badly mistaken!

Do you know how much it hurts, to realize how wrong you could be about something?

And the worst thing is, all these people I listened to, that I trusted -- they don't even care! Instead of apologizing for misleading me, they're crowing that they were right all along, that Obama's "change" is an empty promise!

You have no idea how I betrayed I feel right now.
11.24.2008 10:47pm
nicestrategy (mail):
Rather a simple election strategy:

Bush = Bad
McCain = Bush
Obama = Change
Change = Not Bush

The supposition that Obama was really talking about some kind of outsider revolution of the Washington establishment even though he never said anything remotely like that is just a figment of the punditocracy's imagination. Nor did Obama mean that "Change" requires that absolutely every policy must change. He's a little smarter than ABC policymaking. ("Anything But Clinton" -- an actual catchphrase with the new Bushies in 2001, which was change for the sake of change ideological, politicized, bad policymaking).
11.24.2008 10:48pm
Smokey:
Milhouse:
There is a fix. Congress can retroactively repeal the increase in the SoS's salary, back to what it was at the beginning of 2007, when Clinton's current term began. Technically this would require...
...and blah, blah.

That will never fly.
11.24.2008 10:57pm
cthulhu (mail):
OK, I see in the other post (where I just got around to looking at comments) that my point isn't original. Nevertheless, just what is a "civil Office under the Authority of the United States"? I had figured it was any non-military person with a US paycheck.
11.24.2008 11:00pm
Simon Dodd (mail) (www):
cthulhu:
I find this discussion very interesting, but I wonder why it is limited to the Secretary of State. Aren't President and Vice President "civil Office under the Authority of the United States"?
Seth Tillman has an interesting article on that point, and either way, since the President and veep are elected not appointed, the clause has no application to them.
11.24.2008 11:12pm
Milhouse (www):
An "office under the United States" is a job to which one is appointed by the president. Therefore it doesn't include the presidency or vice presidency. Tillman makes a good case that both Obama and Biden could, if they were crazy enough, continue as senators. Of course the question is highly theoretical, because no congressman who becomes president or VP is ever going to try to do both jobs at once, however much they'd be constitutionally entitled to.
11.24.2008 11:28pm
Commonsense Comment (mail):
The purpose of the clause is to prevent members of Congress from benefiting from appointment to offices they've had a hand in creating or enriching, then; it should be entirely obvious that allowing an individual to escape this prohibition by resigning from Congress would thwart that purpose.

Precisely.
11.25.2008 12:35am
David Schwartz (mail):
I think the strongest argument would be that COLAs are not really an increase but simply avoiding a decrease. The second-strongest would be that the increase should be considered effective as of the time it was made law rather than as of the time one stage in the implementation occurred.
11.25.2008 1:09am
Mike G in Corvallis (mail):
Simon Dodd wrote:

Looking through the comments to the earlier post, it's stunning to see how many people think (wrongly) that this can be cured by Clinton's resignation, notwithstanding the clear text of the clause and OLC precedent stretching between at least 1883 and 1996.

There's one such person fewer now. It pains me to say this, but some residual speck of honesty compels me to admit that you are correct and I was ... somewhat less correct.

Hrrumph. I hate it when people on the opposing side have facts, logic, and precedent in their favor. That sort of thing should be outlawed.

Seriously, thanks for the link to the OLC opinion. And I do believe the clause could have been worded less ambiguously and more effectively.

The purpose of the clause is to prevent members of Congress from benefiting from appointment to offices they've had a hand in creating or enriching, then; it should be entirely obvious that allowing an individual to escape this prohibition by resigning from Congress would thwart that purpose.

Yup. It's a shame that the Founders chose such an imprecise instrument for this purpose, though. As the OLC memo implies, it's still possible for a Senator or Representative to vote for a pay raise for Cabinet members in October, retire or lose the election for a new term in November, and then be appointed to a Cabinet position the following January.
11.25.2008 3:17am
Jim Carlile (mail):
Simply put, if the salary is striken back, the emoluments haven't been increased. A revocation is not an increase, and that's what counts.

The opposite opinion here seems a bit of sophistry. And I don't buy the legal opinion that an executive-mandated increase kicks in the emoluments clause, either. The prohibition clearly applies to a legislative decree of which the recipient is both a beneficiary and a sponsor.
11.25.2008 5:02am
Smokey:
David Schwartz:
I think the strongest argument would be that COLAs are not really an increase but simply avoiding a decrease...
Emolument = compensation.

Does that make it clear? A cost of living adjustment or any other compensation is an emolument. That's a pretty clear line that, in Senator Clinton's case, has been crossed.

I would love to hear Congress debate trying to uncross that line. I can hear it now: "Shenanigans!"
11.25.2008 5:56am
David Schwartz (mail):
Smokey: I agree that COLA is an emolument.

The first question is whether a COLA Is an increase in the emolument. As I said, one can argue that a COLA simply prevents a decrease in the emolument.

The second question would be whether the COLA increases the emolument as of the data a particular COLA was applied or as of the date the COLA scheme was created. One can certainly argue that implementing a scheme of COLAs is an increase in the emolument without conceding that each individual COLA under that scheme is itself an increase, since they were then already "in the cards".
11.25.2008 8:04am
Conrad Bibby (mail):
LN: I consider myself a pretty conservative guy, and I don't remember predicting any of the things you say "all right-wingers" predicted. I remember arguing that Obama was an unreasonably risky choice for president for a number of reasons, including his extreme leftist background and associations. It's akin to saying a former arsonist is a risky choice to hire as a property manager: he may not torch your buildings, but why take the chance?

As for the second part of your dual-strawman post, I also don't agree that Obama's "not going to change anything at all." Isn't that a bit premature? We're still two months away from Inauguration Day.
11.25.2008 8:12am
Letalis Maximus, Esq. (mail):
OK, so who would have standing to challenge the appointment? A current employee of State, perhaps? Someone who lobbied for the job, but Obama rejected?
11.25.2008 8:15am
RobNatelson (mail):
Three points:

First: A COLA is clearly an "encrease" since if it kicks on on December 1, the recipient has more purchasing power than he or she had on Nov. 30.

Second: An grain of history is worth a C-weight of logic-chopping. During the Virginia ratifying convention, James Madison twice defended the ability of Congress to raise salaries (rather than have them fixed in the Constitution) precisely on the ground that doing so probably would be necessary to keep up with future inflation (3 Elliot's Debates, 369 &372). This also was discussed at the federal convention. Madison's remarks seem to imply that a COLA would be an "encrease" of emoluments. So the Founders, as usual, anticipated the problem. (Of course, he did suggest that a fixed amount be inserted into what became the Seventh Amendment, but the effect of inflation there would simply be to increase marginally the scope of the right to civil jury trial).

Third: I know the "he/she" argument is tongue in cheek because all of us (I hope) are aware that at the time "he" meant "he or she." Moreover, in various early drafts of the Constitution there were references that seem more gender-specific (to males), but were taken out of the final version.
11.25.2008 8:46am
Tritium (mail):
Executive Orders do not, and cannot have the effect of legislation, as all legislative power is vested in Congress. And in a Republican form of government, all powers are derived directly from the people, and I do not recall a power granted to congress having a delegating power.

That being said, would biden himself not be under the same conditions? And then why wouldn't the office of President also be prevented from holding office until the end of the term he was elected for Senator is over?
11.25.2008 8:46am
Snaphappy:
"[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 increased during such time"

In order to be disqualified, a person must meet two conditions. They must (1) be a Senator or Representative; and (2) the time for which the person was elected must not have expired.

The question discussed here is whether a person who resigns is still a "Senator or Representative." If not, condition (1) is not met, and the person is not disqualified.

So what can we discern from the rest of the clause about what is meant by "Senator or Representative"? One answer expressed in comments above is that the temporal limitation indicates that only a sitting Senator or Representative is disqualified. Although it's not the best way to express that limitation, it does make sure that no Senator or Representative will be disqualified once his term has ended. The problem with this interpretation is that it requires an expansive view of the term "Senator or Representative" to include someone whose term has ended.

If a former Senator is a Senator, then you need clause (2) to make sure the former Senator isn't disqualified. But if that's true, the same would be true of a former Senator by resignation. And there is no special clause for resigned Senators. So even the best reading that condition (2) does not necessarily apply to resigned Senators, requires that one assume a resigned Senator is still a Senator. Accordinly resigning would not be enough to make one no longer a Senator.

In full disclosure, I started this post to explain how resigning could well remove the disability, but changed my mind along the way. One remnant point that I would still like to make is that OLC opinions are not "precedent" in the same way that judicial opinions are. They are just what someone earlier thought about the issue. They are not binding on anyone, and are only as good as their ability to persuade.
11.25.2008 10:04am
John M. Perkins (mail):
Could not Clinton take the position at the old pay, and then received the increase starting when her Senate term ran out?
11.25.2008 10:04am
MG:
Are there any Seventh Amendment cases that provide any guidance? That Amendment provides that the right to trial by jury shall be preserved for suits at common law where the amount in controversy is greater than $20. Is that still the amount that triggers the Seventh Amendment right to jury trial?
11.25.2008 10:24am
ReaderY:
The amendment only applies to "appointed" office. President and vice-President are elected (by Electors), not appointed.
11.25.2008 10:37am
Kevin T. Keith (www):
if the meaning of texts "evolve" over time, then "thirty-five years of age" does not mean "thirty-five years of age" but stands instead for an evolving principle of maturity. In 1996, this would have meant that the lawful President of the United States was Strom Thurmond, not Bill Clinton.

This is why nobody takes "strict constructionists" seriously.

You can argue that changes in context, referential meaning, impact, or other aspects of terms used in the Constitution should not be taken into account in applying those same terms more than 200 years after they were written, under unrecognizably different circumstances, if you like. But you cannot bolster that argument by the asinine suggestion that that there is any difficulty in interpreting terms whose meaning has not changed.

"Firearms" and "militias" are both very different things today from what they were, and were intended to be, when the Constitution was written. So is the common appreciation of what punishments are deemed "cruel", or the empirical facts as to which are "unusual". Again, you can inist on ignoring those differences if you feel you have to - presumably out of some psychological hankering for a pre-Civil Rights, pre-Miranda, pre-New Deal, pre-feminist, pre-Civil War, pre-industrial America. But the meaning of "year", and indeed of the number "35", have not changed.

That Paulsen would seriously suggest that the obvious absurdity of an "evolution" in the meanings of the names of integers, or the physics of the Earth's orbit of the sun, demonstrates a parallel absurdity in the idea of changes in technology, social institutions, or societal values over more than 220 years, calls his comprehension of basic language into question. It would have to be regarded as a joke, except that (a) it is no dumber than the usual "constructionist" reasoning, and (b) he published it in a well-known law journal, and now relies on the same examples to make a similar argument in a different case more than 10 years later. Apparently Paulsen is not making a joke with his argument for a static interpretation of the Constitution; he's making an argument he considers serious, that simply sounds like a joke.
11.25.2008 10:45am
ShelbyC:

presumably out of some psychological hankering for a pre-Civil Rights, pre-Miranda, pre-New Deal, pre-feminist, pre-Civil War, pre-industrial America


Or some psychological hankering to have the need to change the Constitution addressed through Article 5, instead of at the whimsey of life-appointed judges?
11.25.2008 10:54am
Plumb Bob (mail):
Kasinski wrote (11.24.2008 5:13pm):


But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.

What refreshing logic, why isn't this standard applied to the 2nd Amendment?


It is. I'm just reading Heller now, and this argument was prominent in the majority opinion. Long-standing jurisprudence establishes that the purpose stated in the preamble must be achieved, but that the purpose does not constrain the application of the rule. So, in the case of the 2nd Amendment, the rule provides for arming a citizen militia, but is not limited only to that. And likewise here, the rule prevents a self-serving appointment, but is not limited only to that.
11.25.2008 11:10am
Tony Tutins (mail):
Wikipedia reports that Daniel Webster left the Senate for his second stint as Secretary of State. Someone should research whether the SoS's salary was increased between 1845 and 1850, and what, if anything, was done about it.
11.25.2008 11:10am
Oren:

Oren - A distinction without a difference. Clinton would have been acting as Secretary of State for months, exercising the duties of the office, representing the US abroad, etc., before the suit, and probably during the suit as well.

Surely you jest. A married couple can go on pretending to be married but if either spouse was married to someone else beforehand, the marriage is void. That's quite different from getting married and then getting divorced.
11.25.2008 11:27am
cbyler (mail):

But wait! Wasn't the (probable) purpose of the Emoluments Clause to prevent congressional self-dealing in the form of creation of offices (or increasing their emoluments) and hoping to profit thereby by being appointed to such office? And isn't that purpose plainly inapplicable here? Perhaps. But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.

Well then, I guess we'd better abolish the Air Force; the Constitution only authorizes an army and a navy.

After that we can chuck all that precedent that applies the First Amendment to forms of communication that are neither speech, nor involve a printing press.

Continuous inflation of fiat currency, air forces and electronic communication are all phenomena beyond the experiences of the Founders; originalism will not produce sensible results when considering how to expand the Constitution to cover them. This is precisely why canons of statutory (and constitutional) construction caution against hypertechnical readings that produce an absurd result or one contrary to the overall intent, such as construing an inflation adjustment as an "increase", or holding that a revoked increase is not irrelevant on the basis of which verb tense is used in the wording.

As for standing, it seems to me that even someone aggrieved by an act of the SoS would also have to prove that an alternative SoS wouldn't have taken that act, because otherwise there is no nexus between the supposedly illegal holding of office by the defendant and the plaintiff's alleged injury and, thus, the injury complained of would not be remediable. Good luck raising that claim above the speculative level. (Contrast the more common challenge that *no* secretary of [department] can constitutionally do X, which you are aggrieved by; if you prevail on this claim, then clearly X must be undone, so the harm is remediable.)
11.25.2008 11:32am
Armitage (mail):
The State Department's Office of the Historian has been asked about the historical background to the emoluments question and the office of secretary of state. Their email address is history@state.gov.
11.25.2008 12:51pm
Simon Dodd (mail) (www):
Cbyler, I don't see the comparison. We're talking about what the Constitution expressly forbids; you're talking about a generality in what it expressly provides. You would not contend, I assume, that the Constitution forbids the Navy or the Army from operating aircraft. So your argument seems to reduce to the claim that there can't be an independent service called "The Air Force" (à la Hot Shots!, presumably). But the framers were aware of the United States Marine Corps, I take it - a separate service apart from the Navy or the Army. Why, then, assume that all military forces have to slot neatly into a service labeled "army" or "navy"?
11.25.2008 12:56pm
ShelbyC:
cbyler --

the founders were unfamiliar with inflation? Guess Again.

Everybody thinks that restrictions they find inconvienent are "hypertechnical". The fact is, in increase to correct for inflation is still an increase.
11.25.2008 12:56pm
LM (mail):
David Schwartz:

The second question would be whether the COLA increases the emolument as of the data a particular COLA was applied or as of the date the COLA scheme was created.

I agree. It's like the difference between applying a deadline to the date of postmark or the date of receipt.

One can certainly argue that implementing a scheme of COLAs is an increase in the emolument without conceding that each individual COLA under that scheme is itself an increase, since they were then already "in the cards".

As I said on the other thread, I think this argument is textually supported by the word "been" in the Emoluments Clause. If the operative moment was meant to be when the COLA takes effect, the Emoluments Clause might have read "... the Emoluments whereof shall have [...] encreased during such time." Adding the word "been" ("... the Emoluments whereof shall have been encreased during such time...") implies the operative moment is when the Emoluments are acted upon to effect the increase.
11.25.2008 1:17pm
cthulhu (mail):

Seth Tillman has an interesting article on that point, and either way, since the President and veep are elected not appointed, the clause has no application to them.


That was a very interesting article. For such a short and concise document, the Constitution is full of some really tricky bits.
11.25.2008 1:33pm
WK (mail):
About the Saxbe Fix--

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 2:06pm
Milhouse (www):
Smokey wrote:
Milhouse:
There is a fix. Congress can retroactively repeal the increase in the SoS's salary, back to what it was at the beginning of 2007, when Clinton's current term began. Technically this would require...
...and blah, blah.

That will never fly.

Um, why exactly not? Blah blah is not an argument.
11.25.2008 2:16pm
Snaphappy:
Please explain more about transative and intransative verbs. I think I knew this in high school. The sentence, "The building has demolished" isn't ungrammatical; it's a fragment, at least if the intent was something like this:

As an observer here at ground zero on 9/11 I can see that tower 1 is collapsing on top of other smaller buildings. There it goes. The building has demolished the smaller buildings.
11.25.2008 2:25pm
Bob in SeaTac (mail):
As I noted on the other article. This will be ignored.

SCOTUS will say no one has standing to appeal.

Similar to their statement re Obama's birth certificate. And no one is to believe Obama's Kenyan grandmother claiming to be present at his birth in Kenya.

Nothing to see here. Move along.
11.25.2008 3:03pm
non-native speaker:
SailorDave:
Or what if congress prior to Hilary's election specified that the salary would increase automatically by $1 per year? would that disqualify all future Senators from appointments as long as the automatic-increase law remained in effect?


I would say so. The text actually disqualifies all members of a given Congress provided that a majority of them passes a law increasing the emoluments.

If a majority of the new Congress does not repeal that law, all of them will be disqualified as well.
11.25.2008 3:25pm
WK (mail):
Snaphappy-

You're right; the "demolished" example was unclear. What I meant to illustrate is that "The building has demolished" isn't a correct way to say "The building has been demolished." Demolish is a transitive verb; that is, it has to have an object. It's important in connection with the Saxby Fix issue that in the modern history of English, transitive verbs have had a marked tendency to evolve a corresponding intransitive use. The process begins with an incorrect use that eventually becomes standard. One can imagine a child saying on seeing a building fall, "Wow, that building demolished!" And it would not be surprising if such usage were to become standard in the future. That's why I wonder if "increase" was exclusively transitive in the Framers' day -- if someone had to increase something. In the passive voice -- "has been increased" -- you could dispense with the someone, but you would still need an object. The "been" makes the emolument an object. If you said "has increased," it would be a subject, which would make no sense if "increase" were exclusively transitive. So if "increase" used to be exclusively transitive, then grammar alone explains the "been," in the Emoluments Clause, and the word adds nothing to its substantive meaning.

By this point I guess I'm obligated to at least consult the OED rather than just speculating...
11.25.2008 5:08pm
CJColucci:
All of this is fascinating, and I've enjoyed the threads. But does anyone have any good reason to keep the Emoluments Clause as it is? Does anyone see a real, systemic problem that a strict interpretation of the Clause solves? What do people think (when they're not thinking about specific potential appointees) about eliminating it entirely or amending it to allow the Saxbe Fix?
11.25.2008 5:16pm
WK (mail):
Forget everything I said. The word "increase" (or some variant of it) has been used intransitively since the 14th century. It's always possible that late-18th-century Americans viewed that usage as incorrect, but I have no reason to believe so.

Assuming colonial Americans did use the verb both intransitively and transitively, then the Framers could have written "shall have encreased." That they chose "shall have been encreased" then does suggest that they intended to convey "shall have ever been increased" rather than "shall have increased on net."
11.25.2008 5:38pm
Guthram Est:
Secretary of State, Schmecretary of Shmate. Chicken feed.

What I want to know is, can a President appoint himself to the Supreme Court and hold both offices simultaneously? The only Constitutional objection I know of is that he cannot receive an emolument for being on the Court while he is president (II.1), and justices must be paid at stated times (III.1)--so there would have to be a preliminary law making the "stated time" occur only after his term of presidency ended.
11.25.2008 9:23pm
Milhouse (www):
If he's crazy enough to want to do it, and the Senate is willing to go along with it, then sure he can. He just can't take the salary. A president can be given extra emoluments — there's no way to stop people from doing so — he just can't accept. So the president can order the treasurer not to cut him a check and he'd be fine.

And yes, if John Marshall could spend a month as both secretary of state and chief justice, then so can a president. The only difference is practical — Marshall only did it for a month, as a personal favor to the president, and the workload for both jobs was much lighter back then.
11.26.2008 1:47am
Patrick Szalapski (mail) (www):
Simon Dodd, please clear this up--should Senator Clinton resign, she would then no longer be a Senator. The clause seems to apply to a "(1) Senator or Representative (2) during the time for which he was elected." Indeed such an appointment would be "during the time" Clinton was elected, but it would not be the appointment of a Senator, only of a former Senator.

This argument seems to follow the letter of the law but, I concede, completely discards the intent!
11.26.2008 11:23am
indypol:
It seems to me a better clause would be one that would be applied to a president who profits, whether to his or her campaign, foundation or library causes, by granting a pardon to a certain individual. A fresh example is not difficult to find.
11.26.2008 12:53pm
Bill Harnist (mail):
If a train leaves New York City on Nov. 24th at 3:22 PM,travelling west at 52.75 MPH, and a train leaves Los Angeles Nov. 25th at 10.19PM travelling east at 56.25 MPH,would it be unconstitutional if they met in a head-on collision somewhere in Nebraska?
11.26.2008 1:29pm
Fabio Escobar (mail):
What's most interesting is the extent to which this becomes a mere blog trivium and not cause for serious action. This in itself is an indication of the decadence of the present constitutional structure: texts mean nothing, no matter how clear they might be written.
11.26.2008 2:50pm
Perry Dane:
Silly question: Why not enact a constitutional amendment, either to change the rule or clarify it? Surely, it shouldn't be that controversial to conform the (indisputable sense of the) constitutional text to a practice that has been followed for many years in any event.

This raises a deeper question: For some reason, we've become allergic to constitutional amendments, even relatively "minor" ones. The 1950's and 1960's saw a spate of amendments. Most were more than merely "technical," but less than earth-shattering. But the last of this series (the 18-year-old vote) came in 1971. (It only took a 100 days to ratify, by the way.) (The 27th amendment doesn't count here; it was finally ratified in 1992, but was proposed in 1789.)

So why this allergy? Is it the fear that opening the spigot to "minor" amendments will only encourage supporters of more extreme and substantive amendment? Or is it that we've become a very small-c conservative country?
11.26.2008 2:51pm
Perry Dane:
A linguistic note:

The founder's generation seems to have liked the "shall have" or "shall have been" construction, even when it didn't convey (at least to me) any particular additional shade of meaning.

Examples:

"If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him..." Is that any different from "If any bill is not returned by the President within ten days ... after it has been presented to him"?

"The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them." Is that any different from "for which he has been elected"?

"No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." Is that any different from "has intervened"?

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." Is that any different from "was committed"?

So, unless I'm wrong in reading all these clauses, might it be that the use of "shall have been" in the Emoluments Clause is more of a stylistic tic than a deeply meaningful linguistic choice?
11.26.2008 3:06pm
NTB:

Adjustments to congressional salaries under the Ethics Reform Act are not discretionary acts of Congress. The adjustments are calculations performed by non-legislative administrative staff, following a specific formula provided by Congress in the Act. Members of Congress do not participate in the calculation of pay increases. In removing members of Congress from the pay adjustment process, the Ethics Reform Act accomplishes the goal of the Founding Fathers manifested in the Twenty-seventh Amendment. The Act eliminates the possibility that Congress will grant itself a new pay raise during its current session.
Shaffer v. Clinton, 54 F.Supp.2d 1014, 1023 (D.Colo., 1999), aff'd on other grounds, 240 F.3d 878 (10th Cir. 2001).

Looks to me like Judge Kane basically agreed with David Schwartz's "second-strongest" argument. I know there are significant textual differences between the 27th Amendment and the 7th Amendment. (Not the least of which is that the one is triggered by laws taking effect, while the other is triggered by appointment to office.) Still, I bet that any court looking at this issue would conclude that the "encrease" in emoluments occurred when the legislation was enacted, not when the ministerial act implementing the legislation occurred.
11.26.2008 5:08pm
Eric Finley (mail):
Perry -

No, I think it is in fact gramatically relevant. The Founders, being nitpicky, would not use "is" to refer to a future occurrence. "If any bill is not returned to the President" would only, to them, refer to a bill actively being returned as they were writing it, or to an ongoing event (streams flowing, etc) which could be presumed to be time-independent.

But the difference between "shall have been encreased" and "shall have encreased" is relevant. The former refers to an act - the encreasing of an emolument. The latter refers to the status/size of the emolument itself.

This distinction, to me, would tend to reinforce the second "likely defense" listed above... that the relevant act here is not the President's refusal to dispute the COLA (remember that it occurs automatically unless he says no; he does not increase it himself), it's the passage of the exec order which created the ongoing COLA.

The current salary "has been" increased by that executive order. But it "has" increased, during Hillary's term. So the "been" is important, and supports the commonsensical view that this is a ridiculous issue over a widely recognized modern economic fact.
11.26.2008 5:23pm
ladycaviar:
What if, theoretically, she -- or any other Senator in such a position -- chooses to not accept a salary as Secretary of State? Would that make a difference?
11.26.2008 6:12pm
Rymond Swanson (mail):
"There is a fix. Congress can retroactively repeal the increase in the SoS's salary, back to what it was at the beginning of 2007, when Clinton's current term began."

Millhouse, I believe that your "fix" was discussed in the article itself:

"A "fix" can rescind the salary, but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls."

"Repealing" the increase will not change history. The increase happened during her term, there's no avoiding that.


""this can be cured by Clinton's resignation"

Isn't that a spurious argument, as Mrs. Clinton will have to resign her Senate office prior to her appointment to the SoS office no matter what? I don't believe she can hold two public offices, one in the Legislature and one in the Administration, as this would violate Article 1, Section 6 of the Constitution:

"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 increased
during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
"

This means that Mrs. Clinton, as well as other any Senator or Representative, MUST resign their legislative office prior to accepting an administrative office like the SoS.
11.27.2008 11:40am
Rymond Swanson (mail):
"What if, theoretically, she -- or any other Senator in such a position -- chooses to not accept a salary as Secretary of State? Would that make a difference?"

I don't think it would as the Clause denies her the very appointment itself.
11.27.2008 11:48am
Rymond Swanson (mail):
There really is a way to avoid the whole conundrum, and that's for Senator Clinton to turn down the appointment altogether. She was elected as a Senator, I think she should uphold her commitment to the people who elected her and serve her entire term.
11.27.2008 11:52am
rjs=stsa (mail):
waidaminit

bla bla bla if you want to get rid of hilery shut up ,
wait until she is replaced in the senet , then rub the
constitution in her face . there can be only three
outcomes in hills future : senator hrc if she declines
, secretary hrc if you fail, citizen hrc if you succeed

or does the big "O" just want to get her out of the sen
and out of the way

stsa
11.28.2008 2:27pm