The Volokh Conspiracy - 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.

	[Eugene Volokh, May 22, 2009 at 4:31pm] Trackbacks 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. 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: