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New Justice Department Opinion on the Ineligibility Clause (Sometimes Also Called the Emoluments Clause):

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.

Nunzio:
Interpreting this provision based on its purpose, which this provision seems to cry out for, suggests that the Saxbe fix is not unconstitutional.
5.22.2009 4:38pm
ShelbyC:
"shall have been encreased" litterally means increased even if it was lowered again, but if you read as litterally as that you have to read "freedom of the press" as preventing the regulation of dry cleaners.
5.22.2009 4:48pm
Oren:
Textualism versus Originalism: Go!
5.22.2009 4:56pm
A.S.:
but a new opinion, released by the same office last week, reaches the contrary view

Coincidentially, the Justice Department reached the conclusion that President Obama wanted it to reach. Funny how that happened. What luck!
5.22.2009 4:59pm
ShelbyC:

Textualism versus Originalism: Go!


I don't think so, even textualism requires context, as my example with the dry cleaners makes clear.
5.22.2009 5:00pm
AJK:

(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?")


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.
5.22.2009 5:59pm
Soronel Haetir (mail):
At least the original provision worked well enough to prevent people from creating offices they then inhabited. The fact that we now get to argue about this particular silly edge case shows how well it prevented rampant abuse.

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.
5.22.2009 6:10pm
Esquire:
We pass laws, we don't pass the purposes behind them (unless perhaps if a provision read "we hereby enact only the purpose motivating this text" or some such).

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!)
5.22.2009 6:36pm
David Schwartz (mail):
I agree with AJK. Your reading renders the word "been" superfluous. The only way I can think of to defend this view is to argue that the word "been" is needed for some other reason.

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.
5.22.2009 6:38pm
Esquire:
Perhaps an interesting question for judicial nominees would be,

"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.
5.22.2009 6:38pm
Andrew J. Lazarus (mail):
Your reading renders the word "been" superfluous.
I don't think so. Without 'been', the clause can be interpreted as the active voice where the emolument is the subject. 'Increase' can also function as a transitive verb. These days, we leave out the 'to be' and recognize it as passive from semantic context. (An emolument is not an actor that can increase something.) I'm not sure that Constitution-era grammar was as loose on this.
5.22.2009 6:52pm
dmv (www):
The suit will fail because the clause is, on its face, inapplicable to this situation.

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

Amirite?
5.22.2009 7:04pm
Soronel Haetir (mail):
dmv,

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.
5.22.2009 7:18pm
josh bornstein (mail):
DMV,
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)
5.22.2009 7:24pm
Guest12345:

However, I would argue that a COLA is not an increase. It's a method of keeping something the same in real terms.


Then inflation would be a taking and the government should be required to compensate every American.
5.22.2009 7:31pm
dmv (www):
Soronel:

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.
5.22.2009 7:44pm
AJK:

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..?



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.
5.22.2009 7:58pm
David Schwartz (mail):
Then inflation would be a taking and the government should be required to compensate every American.
It is, and they do. It's the same as taxation, it's a general scheme that takes fairly from everyone and everyone gains in exchange the benefits of a government.

The takings clause is about unfair distribution of the costs of government. It's not about free government.
5.22.2009 8:09pm
Soronel Haetir (mail):
dmv,

I was thinking in terms of other clauses, not this particular one.
5.22.2009 8:58pm
Esquire:
"Then inflation would be a taking and the government should be required to compensate every American."

"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.
5.22.2009 9:24pm
MarkField (mail):

We pass laws, we don't pass the purposes behind them (unless perhaps if a provision read "we hereby enact only the purpose motivating this text" or some such).


Since at least the 1700s, common law courts have considered the purpose of a statute when interpreting it.
5.22.2009 10:16pm
David Schwartz (mail):
Esquire: What's a tough equivalency to argue? That inflation (at least inflation directly attributable to printing money) is equivalent to taxation? That seems somewhat self-evident to me.
5.23.2009 6:18am
mls (www):
Here is my question. Given that reaching a different conclusion would have required OLC to invalidate the appointment of at least two cabinet members (Clinton and Salazar), does anyone think that OLC seriously considered affirming the 1987 opinion? What would OLC have done if the "best" legal view had required it to come down on the other side?
5.23.2009 9:33am
AJK:


Then inflation would be a taking and the government should be required to compensate every American.


What if there's deflation -- would that disqualify everyone in Congress from holding the offices, even if the nominal salary hadn't been changed?
5.23.2009 9:58am
Plastic:

"the Emoluments whereof shall have been encreased during such time" is most plausibly read as "shall have been increased on 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?")

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.
5.23.2009 10:16am
David Schwartz (mail):
By the way, I think any increase during the time period reflects the intent of the clause better than a net increase over the whole time period.

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.
5.23.2009 10:24am
CJColucci:
There are reasonable arguments for both sides on whether the Saxbe Fix -- it actually goes back a lot longer than that -- solves the Emoluments Clause problem. Let's assume that the Supreme Court says Hillary can't be Secretary of State. Does anyone doubt that the Emoluments Clause would be amended very quickly to include at least the Saxbe Fix, if not more radical surgery? If so, why pick from between two plausible meanings the one that Constitution-sized majorities would almost instantly repudiate?
5.23.2009 1:47pm
AJK:

There are reasonable arguments for both sides on whether the Saxbe Fix — it actually goes back a lot longer than that — solves the Emoluments Clause problem. Let's assume that the Supreme Court says Hillary can't be Secretary of State. Does anyone doubt that the Emoluments Clause would be amended very quickly to include at least the Saxbe Fix, if not more radical surgery? If so, why pick from between two plausible meanings the one that Constitution-sized majorities would almost instantly repudiate?



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.
5.23.2009 2:26pm
Guest12345:

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 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:

Effective January 20, 20__ the salary of Secretary of State shall be reduced to the level it was at at the beginning of Senator _____'s term. Additionally, effective twenty-four hours after Senator _____ is sworn in as Secretary of State, the salary shall be increased by $500,000 per year.
5.23.2009 2:55pm
alan (mail):
What about Kirsten Gillibrand? Weren't the Emoluments of the office of Senator encreased during the Time for which she was elected?
5.23.2009 3:55pm
AJK:

What about Kirsten Gillibrand? Weren't the Emoluments of the office of Senator encreased during the Time for which she was elected?


Senators aren't officers in the intended sense.
5.23.2009 4:56pm
David Schwartz (mail):
AJK: Because fixing the Emoluments clause is better than ignoring it. One possible fix, for example, would be to exclude COLAs (though as I've argued, I think they are already excluded). Allowing the Saxbe fix utterly guts the clause, allowing a Senator to raise the salary of an office and then take that office providing a previous attempt at the same was defeated.
5.23.2009 7:23pm
Oren:

Yes, it's 1 U.S.C. 1

1USC1 cannot possibly modify the Constitution.


What if there's deflation -- would that disqualify everyone in Congress from holding the offices, even if the nominal salary hadn't been changed?

COLA should decrease their salary proportionally.
5.23.2009 7:27pm
AJK:

AJK: Because fixing the Emoluments clause is better than ignoring it.



Isn't that what I've been saying the whole time?



1USC1 cannot possibly modify the Constitution.



That's not what he asked.
5.23.2009 9:08pm
David Schwartz (mail):
Sorry, that was a reply to CJC, not AJK.
5.24.2009 6:29am

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