There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Ineligibility 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 ....
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 Ineligibility Clause question is in play. Congress's solution to the problem was the application of the so-called "Saxbe Fix" (named after a previous beneficiary of the approach): Lowering the salary of the office to the salary in effect before the appointee's current term.
A 1987 Justice Department Office of Legal Counsel opinion opined that the Saxbe Fix is unconstitutional, but a new opinion, released by the same office last week, reaches the contrary view: The Saxbe Fix, it concludes, cures the Ineligibility Clause problem. I tend to agree, for the reasons I tentatively suggested some months before, chiefly that "the Emoluments whereof shall have been encreased during such time" is most plausibly read as "shall have been increased or not" rather than "shall have been increased at least once." (As I suggested, 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 more plausible 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?")
Also, as I noted before, the bulk of recent precedent from the Legislative and Executive Branches — both Democrats and Republicans — supports the view that the Saxbe Fix is constitutional.
UPDATE: Judicial Watch, which is challenging Hillary Clinton's appointment, has put up all the documents — including their complaint and the motion to dismiss, as well as the OLC opinions — on their Rodearmel v. Clinton page.
Related Posts (on one page):
- The Resultative Perfect
- New Justice Department Opinion on the Ineligibility Clause (Sometimes Also Called the Emoluments Clause):
- Judicial Watch Sues Over Hillary Clinton and the Emoluments Clause:
- The Saxbe Fix Is In,
- Why Isn't Vice-President-Elect Biden Affected by the Emoluments Clause?
- More on Hillary Clinton and the Emoluments Clause:
- Hillary Clinton and the Emoluments Clause:
Coincidentially, the Justice Department reached the conclusion that President Obama wanted it to reach. Funny how that happened. What luck!
I don't think so, even textualism requires context, as my example with the dry cleaners makes clear.
I'd agree with you if the relevant clause said, "the Emoluments whereof shall have encreased during such time". Under the actual wording, "the Emoluments whereof shall have been encreased during such time", I think it has to mean "if an increase has occurred at any point in that timespan."
I'd agree that the Saxbe fix avoids the concerns that the clause was intended to address, but that doesn't change the fact that it's unconstitutional. That constitutional provision is probably silly, or at least poorly phrased, but it's still the law of the land and I don't think a tacit (or explicit) agreement to ignore it is the best way to handle the situation.
I suppose it also helps that there aren't that many positions that are really a step up for a legislator. Perhaps the clause is part of why that is still true.
If you're not willing to enforce a provision just because it's absurd, irrelevant, and/or unjust, then why bother even writing down laws at all? Let's just have a constitution that says "everyone shall do what's reasonable in all cases" and let the courts figure it out! (That's how we seem to act anyway!)
I have only heard one ever proposed, and it fails. Consider "the person shall have killed" compared to "the person shall have been killed". The word "been" changes the subject to the object.
However, in the emoluments clause no such argument works. The grammar of the words involved has not changed significantly since the clause was written.
The words "shall have encreased" can easily mean a net increase. The words "shall have been encreased" takes a stretch to fit that meaning and renders "been" surplussage.
Also, the use of "during such time" rather than, say, "over such time" suggests a singular event in a time period rather than a net change of two points compared.
However, I would argue that a COLA is not an increase. It's a method of keeping something the same in real terms.
"Would you ever be willing to arrive at a conclusion that you found morally reprehensible or utterly nonsensical?"
If not, then the law is just window dressing to you.
Amirite?
If you are going on the word he (my TTS software doesn't tell me about any highlighting you've done) there would likely be other problems for Mrs. Clinton.
I had wondered about the same (silly, but textually-accurate) point. If one believes in strict construction, does that mean that women are exempt (or unprotected) from any laws that used only the masculine form in their language? Or has there been some legislation that says, in essence, "he" or "his" or "him" shall refer to either/both a man or/and a woman, unless . . . etc. etc..?
Obviously, we are getting into silly-season here, but what would be the argument against this recherce interpretation? We want absolutely strict construction for part of this clause, but not for another part?
As I said; silly season (IMO)
Then inflation would be a taking and the government should be required to compensate every American.
The implication of your post is disturbing, but yes, I did embolden "he."
If you have evidence that the clause is facially applicable to Mrs. Clinton, I think the country would be very interested to learn of it.
National Enquirer, FTW.
Yes, it's 1 U.S.C. 1: "In determining the meaning of any Act of Congress, unless the context indicates otherwise ... words importing the masculine gender include the feminine as well". That's basic English grammar, of course, but I guess they wanted to be explicit about it.
The takings clause is about unfair distribution of the costs of government. It's not about free government.
I was thinking in terms of other clauses, not this particular one.
"It is, and they do. It's the same as taxation . . ."
Then inflation policy needs to be enacted in Congress (and originate in the House), as tax bills are required to. This is economically a tough equivalency to argue, and as Ron Paul would note it's why fiat currency is unconstitutional.
Since at least the 1700s, common law courts have considered the purpose of a statute when interpreting it.
What if there's deflation -- would that disqualify everyone in Congress from holding the offices, even if the nominal salary hadn't been changed?
I think both readings are valid by common usage depending on context. If you see a sign that says "$100 off this computer" and ask "Has the price of this computer been increased during the last year?" it seems you are looking for whether there were any increases, not just a net increase.
Even with your common understanding, I prefer giving some preference to the actual words in a law if only to make lawmakers write what they actually mean instead of forcing courts to guess at their poor language.
The purpose of the emoluments clause was largely to prevent someone from jacking up a salary for an office they expected to get. It's hard to see how a previous decrease in the salary makes this any better.
For example, suppose someone jacks up the salary to an unreasonable level. Then I take office. Others sanely put the salary back to a reasonable level. Then I manage to jack the salary back up to the previous unreasonable level. That there is no net increase due to previous tomfoolery shouldn't prevent the emoluments clause from smacking down my attempt to reap the benefits of the increase.
Because I don't think they are equally plausible, and I think the right thing to do is to change a bad law, not ignore it.
I suppose if you accept the initial claim that a COLA isn't a raise, then I would conclude that what you say follows logically. And it doesn't really bother me. There are a lot of people in this country and quite a few of them are good, honest, intelligent people. Adding some of them to the recipe just might make the pie a little bit better.
If the Saxbe fix is legit, then what is legally wrong with a fix of this nature:
Senators aren't officers in the intended sense.
1USC1 cannot possibly modify the Constitution.
COLA should decrease their salary proportionally.
Isn't that what I've been saying the whole time?
That's not what he asked.
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