The Volokh Conspiracy - Hillary Clinton and the Emoluments Clause:

There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Emoluments 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 ....

Adam Bonin's Daily Kos blog has a bit more on this, but the short version is that 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 Emoluments Clause question is in play. I very recently read an article by John O'Connor on the subject, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), so I asked him what he thought. Here's his answer (some paragraph breaks added); please note that I have some comments at the end of this post that express a somewhat different view:

It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called “Saxbe Fix,” whereby the Secretary of State’s salary is reduced to the salary in effect before Senator Clinton’s current Senate term began.

I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility.

The Emoluments Clause provides 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 encreased during such time.” As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton’s current Senate term, which does not end until 2012. Therefore, under a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.

I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which “have been encreased.” Even if the emoluments of the office are later reduced, it seems to me that they “have been encreased” during Senator Clinton’s current Senate term even if they are later decreased.

Professor Volokh suggested [in the e-mail requesting this response -EV] that the clause might be read so that the emoluments of an office “have been encreased” only if the salary at the time of appointment is higher than the salary at the beginning of the appointee’s congressional term. I do not think that is the best textual reading of the clause. The clause’s use of the past participle (I think that’s what it is) “have been encreased” focuses on acts prior to appointment, and not on where the office’s emoluments stand at the time of appointment as compared to some prior point in time.

This focus [on] a past act of increasing emoluments, rather than on the emoluments existing at the time of appointment suggests to me that the clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end.

In addition, one of the central theses of my law review article on the subject is that the purpose of the Emoluments Clause is disserved by the Saxbe Fix. The records of the federal constitutional convention indicate two purposes underlying the Emoluments Clause: (1) general anti-corruption, whereby Congress might conspire with the President to create offices, or to give existing offices exorbitant salaries, with the understanding that a Member of Congress would be appointed to the office; and (2) limiting the size, importance, and reach of the federal bureaucracy.

The general anti-corruption purpose of the Emoluments Clause might be served by ensuring that a Member of Congress does not get the benefit of any salary increases taking effect during his or her term. But the other purpose of the Emoluments Clause -– limiting the size and power of the federal government as compared to the states -– that purpose is disserved by he Saxbe Fix. The argument in favor of the Saxbe Fix focuses on the back end of the process, making sure the appointee does not benefit from a salary increase. But the purpose of the Emoluments Clause is furthered by the effect it has on the front end -– discouraging the creation of new offices or the increase in the salaries of federal offices by rendering Members of Congress ineligible for appointment, during their current terms, to any office created during their current terms or to any office the salary of which has been increased during their current terms. If, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices.

As they say, anyone wanting the full-blown version of my thought on the subject [which also includes a detailed discussion of the second rationale, "limiting the size, importance, and reach of the federal bureaucracy" -EV] should read the entire law review article I wrote, but this is the gist of it. I should also note that I am highly skeptical that a court would find anyone to have standing to challenge Senator Clinton’s appointment, so this is probably all just an academic exercise. And, I should add that, constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.

Here's my very tentative thinking: I think the phrase "the Emoluments whereof shall have been encreased during such time" is ambiguous. It could mean "shall have been increased at least once," or it could mean "shall have been increased on net." 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 quite possible 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?" In fact, the "on net" reading strikes me as more plausible than the rival reading. If that's so, then the question is how you resolve the ambiguity, in light of

the purpose of the Clause,
the adjustment's being a cost-of-living adjustment that in practice prevents a real-world decrease in pay rather than being a real-world increase (irrelevant to the purely textual analysis that would apply if the text were clear but possibly relevant if the text is ambiguous and we have to resort to determining the purpose of the Clause), and
the Saxbe fix precedent, which dates back to then-President William Howard Taft and Secretary of State Philander C. Knox and has been reinforced by President Nixon and Saxbe, President Carter and Secretary of State Edmund Muskie, and President Clinton and Secretary of the Treasury Lloyd Bentsen, though it has been dissented from during the Reagan Administration, when the Administration's conclusion that the Saxbe fix was unconstitutional apparently helped lead to the selection of Robert Bork (and then Douglas Ginsburg and finally Anthony Kennedy) in place of Senator Orrin Hatch.

I don't know what the answer is given all that, but those are the things that I'd think about. (I should add that I also agree with John O'Connor that "constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.")

Note also that Michael Stokes Paulsen's Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) suggests that someone might indeed have standing to challenge the Saxbe fix, though only after the appointment. Here's what Prof. Paulsen says about Secretary Bentsen in particular, though it would likely apply to a Secretary of State as well:

In the Lloyd Bentsen case, however, I would not be too sure that there is no litigation risk. While a direct taxpayer or citizen suit might be foreclosed by the Incompatibility Clause precedent, the unconstitutionality of Bentsen's appointment could always be invoked as a defense to some coercive action or order by the Treasury Secretary, much as the unconstitutionality of the Independent Counsel statute was asserted (unsuccessfully) as a defense to prosecutions brought pursuant to that statute. Indeed, the Lloyd Bentsen Relief from the Constitution Act of 1993, like earlier such relief acts, authorizes private civil actions contesting the unconstitutionality of Bentsen's appointment by "[a]ny person aggrieved by an action of the Secretary of the Treasury" and provides for expedited consideration and appeal of such a lawsuit. A person adversely affected by a Treasury Department regulation promulgated by Secretary Bentsen -- say, for example, new Treasury or IRS regulations implementing President Clinton's tax hikes -- would have standing to sue to have such regulations overturned on the ground that the Secretary of the Treasury was illegally appointed. Of course, there would be many collateral issues of jurisdiction and remedy. (Could an aggrieved individual also obtain injunctive relief against Bentsen's continuance in office? Could Treasury simply reissue the regulations under the authority of an Acting Secretary and make them retroactive?) But the short point is that Bentsen's unconstitutional appointment can be made the subject of a lawsuit and that a finding of unconstitutionality could create a real mess.

I could find no such challenges, however.

	[Eugene Volokh, November 24, 2008 at 11:48am] Trackbacks Hillary Clinton and the Emoluments Clause: There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Emoluments 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 .... Adam Bonin's Daily Kos blog has a bit more on this, but the short version is that 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 Emoluments Clause question is in play. I very recently read an article by John O'Connor on the subject, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), so I asked him what he thought. Here's his answer (some paragraph breaks added); please note that I have some comments at the end of this post that express a somewhat different view: It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called “Saxbe Fix,” whereby the Secretary of State’s salary is reduced to the salary in effect before Senator Clinton’s current Senate term began. I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility. The Emoluments Clause provides 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 encreased during such time.” As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton’s current Senate term, which does not end until 2012. Therefore, under a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013. I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase. The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun. It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which “have been encreased.” Even if the emoluments of the office are later reduced, it seems to me that they “have been encreased” during Senator Clinton’s current Senate term even if they are later decreased. Professor Volokh suggested [in the e-mail requesting this response -EV] that the clause might be read so that the emoluments of an office “have been encreased” only if the salary at the time of appointment is higher than the salary at the beginning of the appointee’s congressional term. I do not think that is the best textual reading of the clause. The clause’s use of the past participle (I think that’s what it is) “have been encreased” focuses on acts prior to appointment, and not on where the office’s emoluments stand at the time of appointment as compared to some prior point in time. This focus [on] a past act of increasing emoluments, rather than on the emoluments existing at the time of appointment suggests to me that the clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end. In addition, one of the central theses of my law review article on the subject is that the purpose of the Emoluments Clause is disserved by the Saxbe Fix. The records of the federal constitutional convention indicate two purposes underlying the Emoluments Clause: (1) general anti-corruption, whereby Congress might conspire with the President to create offices, or to give existing offices exorbitant salaries, with the understanding that a Member of Congress would be appointed to the office; and (2) limiting the size, importance, and reach of the federal bureaucracy. The general anti-corruption purpose of the Emoluments Clause might be served by ensuring that a Member of Congress does not get the benefit of any salary increases taking effect during his or her term. But the other purpose of the Emoluments Clause -– limiting the size and power of the federal government as compared to the states -– that purpose is disserved by he Saxbe Fix. The argument in favor of the Saxbe Fix focuses on the back end of the process, making sure the appointee does not benefit from a salary increase. But the purpose of the Emoluments Clause is furthered by the effect it has on the front end -– discouraging the creation of new offices or the increase in the salaries of federal offices by rendering Members of Congress ineligible for appointment, during their current terms, to any office created during their current terms or to any office the salary of which has been increased during their current terms. If, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices. As they say, anyone wanting the full-blown version of my thought on the subject [which also includes a detailed discussion of the second rationale, "limiting the size, importance, and reach of the federal bureaucracy" -EV] should read the entire law review article I wrote, but this is the gist of it. I should also note that I am highly skeptical that a court would find anyone to have standing to challenge Senator Clinton’s appointment, so this is probably all just an academic exercise. And, I should add that, constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants. Here's my very tentative thinking: I think the phrase "the Emoluments whereof shall have been encreased during such time" is ambiguous. It could mean "shall have been increased at least once," or it could mean "shall have been increased on net." 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 quite possible 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?" In fact, the "on net" reading strikes me as more plausible than the rival reading. If that's so, then the question is how you resolve the ambiguity, in light of the purpose of the Clause, the adjustment's being a cost-of-living adjustment that in practice prevents a real-world decrease in pay rather than being a real-world increase (irrelevant to the purely textual analysis that would apply if the text were clear but possibly relevant if the text is ambiguous and we have to resort to determining the purpose of the Clause), and the Saxbe fix precedent, which dates back to then-President William Howard Taft and Secretary of State Philander C. Knox and has been reinforced by President Nixon and Saxbe, President Carter and Secretary of State Edmund Muskie, and President Clinton and Secretary of the Treasury Lloyd Bentsen, though it has been dissented from during the Reagan Administration, when the Administration's conclusion that the Saxbe fix was unconstitutional apparently helped lead to the selection of Robert Bork (and then Douglas Ginsburg and finally Anthony Kennedy) in place of Senator Orrin Hatch. I don't know what the answer is given all that, but those are the things that I'd think about. (I should add that I also agree with John O'Connor that "constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.") Note also that Michael Stokes Paulsen's Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) suggests that someone might indeed have standing to challenge the Saxbe fix, though only after the appointment. Here's what Prof. Paulsen says about Secretary Bentsen in particular, though it would likely apply to a Secretary of State as well: In the Lloyd Bentsen case, however, I would not be too sure that there is no litigation risk. While a direct taxpayer or citizen suit might be foreclosed by the Incompatibility Clause precedent, the unconstitutionality of Bentsen's appointment could always be invoked as a defense to some coercive action or order by the Treasury Secretary, much as the unconstitutionality of the Independent Counsel statute was asserted (unsuccessfully) as a defense to prosecutions brought pursuant to that statute. Indeed, the Lloyd Bentsen Relief from the Constitution Act of 1993, like earlier such relief acts, authorizes private civil actions contesting the unconstitutionality of Bentsen's appointment by "[a]ny person aggrieved by an action of the Secretary of the Treasury" and provides for expedited consideration and appeal of such a lawsuit. A person adversely affected by a Treasury Department regulation promulgated by Secretary Bentsen -- say, for example, new Treasury or IRS regulations implementing President Clinton's tax hikes -- would have standing to sue to have such regulations overturned on the ground that the Secretary of the Treasury was illegally appointed. Of course, there would be many collateral issues of jurisdiction and remedy. (Could an aggrieved individual also obtain injunctive relief against Bentsen's continuance in office? Could Treasury simply reissue the regulations under the authority of an Acting Secretary and make them retroactive?) But the short point is that Bentsen's unconstitutional appointment can be made the subject of a lawsuit and that a finding of unconstitutionality could create a real mess. I could find no such challenges, however. 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: