Why Isn't Vice-President-Elect Biden Affected by the Emoluments Clause?

Several people have asked: Why isn't Vice-President-Elect Joe Biden presumptively barred from the Vice-Presidency by the Emoluments Clause (which we discussed in connection with Hillary Clinton's nomination to be Secretary of State)? Apparently the Vice-President's salary was raised during the term for which Senator Biden was elected (I haven't independently confirmed that is so, but I will assume it for purposes of this post). Would that mean that he can't hold that job, at least unless a Saxbe Fix temporarily lowers the salary to its earlier level?

No, because the Emoluments Clause says (emphasis added),

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 ....
Senator Biden is not being appointed, but has rather been elected -- or, if you prefer, will almost certainly be voted into office as Vice-President on Dec. 15 by the Electors chosen by the voters of each state.

This status of the Vice-Presidency as an elective rather than appointive office is also reflected by the constitutional title — used in the Twentieth Amendment — of "Vice President elect." The Emoluments Clause applies only to appointed officers, just as does the Appointments Clause. ("[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.")

There's also something of a debate about whether the Presidency and the Vice-Presidency are considered "Office[s]" for the purpose of various constitutional clauses. But I need not engage that debate here, because the limitation to "appointed" offices settles the matter (though the debate might become relevant for a Vice-President who is nominated by the President and confirmed by the Senate pursuant to the Twenty-Fifth Amendment, in the event the elected Vice-President dies, resigns, is impeached, or becomes President).

So, it's not true that the botox and hair plugs made the Emulsions Clause just roll off that pretty head...
12.8.2008 1:12pm
But what about Gerald Ford?
12.8.2008 1:14pm
Perhaps this helps: Senator Biden's current senate term expires at the end of the year--he was re-elected in November to his Senate seat. Because the 111th Congress convenes on January 6 (I think), that effectively "ends" his previous term.

He, however, would not take the position of Vice-President until January 20 (although, as you note, he likely will be elected as Vice-President on December 15).

That might affect the analysis. For instance, Sen. Spence Abraham lost his re-election bid in 2000, but Pres. Bush nominated him to the position of Secretary of Energy. If Congress voted to raise cabinet salaries between 1994 and 2000 (which it may have, I don't know), Abraham would not have been affected, because he would not have taken office until after January 20, 2001, which was a couple of weeks after his term of office ended.
12.8.2008 1:15pm
KeithK (mail):
Well, if Biden is prohibited form taking office by the Emoluments Clause then maybe Senator Obama is too! Forget the birth certificate cases! We have a clear constitutional case for denying Obama the presidency! McCain too, so I guess we get Palin! Woohoo! I knew it wasn't over when those pesky voters spoke in November!

Or not.
12.8.2008 1:19pm

Well, if Biden is prohibited form taking office by the Emoluments Clause then maybe Senator Obama is too! Forget the birth certificate cases! We have a clear constitutional case for denying Obama the presidency!

Not really. The president's salary is not COLAed and was last raised in 2000, before Obama was elected to the Senate.

12.8.2008 1:25pm
John (mail):
I am surprised that you are all ignoring the effort to get electors to choose Palin as the veep.
12.8.2008 2:31pm
Bama 1L:
I don't understand that use of "surprised."
12.8.2008 2:43pm
I can't believe I missed that "appointed" when I read it the first time. Now I feel stupid for asking.
12.8.2008 4:50pm
jdporter (mail):
Please, call it the Ineligibility Clause, not the Emoluments Clause.
12.8.2008 5:19pm
a knight (mail) (www):
Professor Volokh, this is a bit off-thread for this post, but relevant to the Emoluments Clause posts you have published recently. I've been waiting with amusement for you to reference Robert H. Bork's opinion as Acting Attorney General, arguing that Saxbe's appointment was indeed Constitutional. I discovered this interesting fact from an article you linked to in your November 24, 2008 post.
President Nixon's Acting Attorney General, Robert H. Bork, submitted a bill to Congress to reduce the annual salary of the Attorney General's office to $35,000, the salary the office commanded at the start of Saxbe's Senate term in 1969.

Bork supported his position that reducing the Attorney General's salary would remove any constitutional impediment to Saxbe's appointment by relying heavily upon the Knox precedent. Additionally, Bork invoked the case of Senator Lot M. Morrill...Morrill was appointed Secretary of the Treasury without the Emoluments Clause ever being raised as a possible constitutional impediment...Thus, the Bork view was that increased emoluments occurring after a Member's term began, but repealed at the time of appointment, are irrelevant for purposes of the Emoluments Clause.

John O'Connor, "The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution", 24 Hofstra L. Rev. 89 (1995)

The historical use of the Emoluments Clause, as a means to nullify a Presidential appointee, has never been motivated out of a desire to preserve the Constitution's purity. Instead, it has been ustilised as a situational tactic in partisan Congressional warfare, with the party of the sitting president defending against the other party's attack initiated with an intent to limit the current Executive's Appointment Power. The two-party system needs to be demolished down to its very foundations, and the ground it once stood upon salted, to assure that this monstrous slug which gnaws inexorably away on The Tree of Liberty can never arise again.

Joseph Story's remarks regarding the Emoluments Clause in his "Commentaries on the Constitution", 1833, can be found in Volume II, § 864. His analysis tends to support the argument that the Saxbe fix is unconstitutional.
12.8.2008 7:12pm
Tritium (mail):
I disagree with the notion that Biden isn't appointed, but is instead 'elected'. Remember that voters don't elect the President and Vice President, they merely provide their preference as information for the electoral college, who in turn uses the voters preferences in order to cast their vote. The House and Senate then declare who is favored, and appoint both the President and Vice-President into office. (If they are first nominated, if chose would result in an appointment to office.)

The other factor regarding Biden's term, it states "During his Term for which he'd been elected." The founding Fathers wanted to ensure that a person wouldn't use appointments to both rid themselves of a person to replace with another person who favored a similar ideology. They also felt that anyone who was elected is obligated to perform his duties in which he confirmed by not withdrawing from the race.

And as for Obama, there is a difference between a person who is a native born Citizen and a natural born Citizen. If mom gives the "X" Chromosome and the father gives the "X" or "Y" chromosome, and one of the chromosomes do not belong to a U.S. Citizen, a child cannot be said to be a Natural Born Citizen. Registering a Live Birth is a method of naturalization that is acceptable for children born out of Wedlock. (I believe the fathers name is left off the Certificate unless actual paternity tests are done.
12.8.2008 7:20pm
Hey, Tritium, you're a nut. There are two kinds of citizens: natural born/native born (which mean the same thing) and naturalized. You don't get to invent a new category. You ain't boss.

Also, the electoral college, if you must, elects the President/VP, not the people. But the role of Congress is to count the votes. They don't decide who's to be President: "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest Number of votes for President, shall be the President" (12th Amendment)

The larger number of votes makes the President President. Not any ministerial actions or discretion on the part of the Congress.

Ah, arguing with kooks on the Internet. So fun.
12.8.2008 11:21pm
Eugene Volokh (www):
Tritium: You say that "If mom gives the 'X' Chromosome and the father gives the 'X' or 'Y' chromosome, and one of the chromosomes do not belong to a U.S. Citizen, a child cannot be said to be a Natural Born Citizen," but I didn't see any authority supporting that proposition.

Likewise, you say that what Congress does is "appoint" the President and the Vice-President, but you don't offer any authority for that, even though the Constitution never uses the term, to my knowledge, as to the President and the Vice-President (though it does as to various other officials).
12.8.2008 11:53pm

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