Category: Incompatible Offices

Update: Professor Tillman responds in the comments

Professor Seth Barrett Tillman emails to remind us (among others, see Election Law Blog and the Originalism Blog) of his theory that the President and Vice-President do not hold “offices under the United States” within the meaning of the Incompatibility Clause, and thus that there is no constitutional prohibition on being President/Vice-President and a Member of Congress at the same time.

Just as he argued in 2008 that then-Senators Obama and Biden could remain in the Senate while assuming the presidency and vice-presidency respectively, he believes that Representative Paul Ryan could keep his seat in the House even if he becomes Vice-President.

I have three observations on the subject. First, technically I think that Tillman is correct in saying that Ryan could assume his seat in the 113^th Congress even if he is elected as Vice-President. This is so because the Congress will be seated on January 3, 2013, while the Vice-President will not be sworn it until January 20. Until he is sworn in, Ryan does not have an Incompatibility Clause problem.

Second, although there is a Wisconsin statute that declares that if a candidate is “elected president or vice president of the United States such election shall void the candidate’s election to any other office,” this statute is probably unconstitutional as applied to election to Congress. Since Ryan has the constitutional qualifications to be a member of the House unless and until he becomes Vice President, the Wisconsin statute should not prevent him from receiving a certificate of election and being seated on January 3. Of course, it might be difficult to convince the Wisconsin official responsible for issuing the certificate of election (presumably the Secretary of State) of this.

Third, once January 20 rolls around, Ryan will have to decide whether he would rather be Vice-President or a Member of the House. This is so because (1) I think Tillman is wrong that the Incompatibility Clause allows Ryan to serve as Vice-President and as a Member of Congress at the same time; (2) I am quite sure that the House would think that he is wrong; and (3) even if the House were persuaded that Tillman is right, it would still exclude Ryan on the grounds that the duties of the Vice President are “absolutely inconsistent” with those of a Member of Congress (as it has done in the case of Members elected to state offices such as the governorship- see 6 Cannon’s Precedents § 65).

So I guess the question for Ryan would be: is a seat in the House worth less than a bucket of warm spit?

 

Tillman’s prior writings on the subject may be found below:

 

Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134 (2008), appearing at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292359

 

Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009), available at http://tinyurl.com/4j5mjx

 

Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President,                                4 Duke J. Const. L. & Pub. Pol’y 143 (2009), available at http://tinyurl.com/yglucrc “

 

 

Under Article I, section 6, clause 2, I mean.

That Clause provides in pertinent part that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Under this provision, known as the Incompatibility Clause, holding an office “under the United States” is deemed incompatible with service in the U.S. Congress.

Senator Graham serves in the U.S. Air Force Reserves. From time to time he has been called to active duty, including three “mini-tours” in Iraq. During one of his stints on active duty, the Judge Advocate General of the Air Force assigned Graham to sit as a judge on the Air Force Court of Criminal Appeals, an intermediate appellate court in the military justice system. In that capacity, Graham served in 2004 on a panel that upheld the conviction of an airman charged with drug use.

Senator Brown is a member of the Massachusetts Army National Guard. He also is called to active duty from time to time, including a recent week-long training stint in Afghanistan.

As military officers, albeit part-time and normally inactive, Graham and Brown might be thought to hold  “office[s] under the United States” which would make them ineligible to serve in Congress under the Incompatibility Clause. There seems to be little question that the Incompatibility Clause applies to military offices and thus that regular active-duty officers in the United States military are prohibited from serving in Congress. See Note, “An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve,” 97 Geo. L.J 1739, 1744-45 (2009) (collecting evidence that the Framers understood the Incompatibility Clause applies to military offices).

Continue reading “Are Lindsey Graham and Scott Brown Incompatible?”

         Senator Judd Gregg (R-NH), nominated by President Obama to be Secretary of Commerce, has announced that he will not be voting on the stimulus bill or other legislation while his nomination is pending.  This decision has been criticized, as the linked article suggests: “Gregg’s decision to recuse himself from voting is bound to raise questions about why he is remaining in office if he won’t perform such an essential duty of a senator — voting on legislation. It also may raise questions about whether he is seeking to avoid putting himself in the embarrassing position of voting against Obama’s top economic priority.” 

            I would suggest that the criticism is misplaced.  It is true that Senate rules do not prohibit Gregg from voting.  Senate Rule 37(4) provides that “[n]o Member, officer, or employee shall knowingly use his official position to introduce or aid the progress or passage of legislation, a principal purpose of which is to further only his pecuniary interest, only the pecuniary interest of his immediate family, or only the pecuniary interest of a limited class of persons or enterprises, when he, or his immediate family, or enterprises controlled by them, are members of the affected class.”  This very limited restriction is not applicable to Gregg’s (or possibly any) situation. 

            On the other hand, Gregg clearly has a serious conflict of interest with respect to voting on the stimulus bill or any other legislation that is a high priority for the President, his prospective boss and employer.  As the Senate Ethics Manual notes, “because of the unique nature of their responsibilities to the Senate, including the influence which they exercise over the legislative process, and because all their actions are open to public scrutiny, Members and employees seeking future employment are under a substantial obligation to avoid not only an actual conflict of interest, but also the appearance of a conflict between their duties to the Senate and the interests of the prospective employers with whom they are negotiating.”  The Manual goes on to state flatly that “[i]t would be improper to permit the prospect of future employment to influence official actions.” 

            These strictures are aimed primarily, if not exclusively, at prospective private employment.  The conflict of interest is no less, however, where the prospective employment is in the executive branch.  At least this was the view of the Framers of the Constitution, who, while placing no limitation on ability of a Member of Congress to be employed in either the private sector or state government, provided that “no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office.”  In Federalist No. 76, Hamilton described this provision (the Incompatible Offices Clause), along with the Emoluments Clause, as an “important guard[] against the danger of executive influence on the legislative body.” 

            The Incompatible Offices Clause does not, by its literal terms, prevent Gregg from serving in the Senate and voting on legislation while his nomination is pending.  Nevertheless, the danger of executive influence and the appearance and/or reality of a conflict of interest is just as great, or very nearly so.  No matter how much Gregg attempts to be independent and objective in judging the merits of the stimulus bill, for example, it would seem virtually impossible for him to put entirely to one side the fact that he is about to join the cabinet of the President for whom this bill is the most important domestic priority. 

           

             In a perfect world, perhaps, Gregg would decline to accept the nomination as Secretary of Commerce on the grounds that he is ineligible for that position under the Emoluments Clause (see “Is Hillary Clinton Unconstitutional?”).   Gregg, like his fellow members of Congress, apparently has little interest in following the letter of the Constitution in that regard, but his recusal is at least an attempt to comply with its spirit. 

          On Friday, December 19, 2008, the President signed into law S.J. Res. 46, which provides “[t]he compensation and other emoluments attached to the Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007 and ending at noon of January 3, 2013.”  

            This law, of course, is the so-called “Saxbe fix,” which in this case is intended to obviate objections to the constitutionality of appointing Senator Hillary Clinton as Secretary of State.  Because the salary of the Secretary of State was raised in January 2008 (by approximately $4,700 to $191,300) and Clinton was elected for a (second) term in the Senate from January 3, 2007 to January 3, 2013, her appointment would violate the Emoluments Clause absent this fix. 

            It should be noted that the January 2008 pay raise resulted from a procedure established by a statute, 5 U.S.C. § 5303, enacted before Senator Clinton was in Congress.  Under this law, the salaries of federal employees, including the Secretary of State, are increased annually according to a cost of living formula unless the President certifies that such an increase would be inappropriate.  The Executive Order issued pursuant to this statute did not make such a certification so the pay raise went into effect. 

            Professor Tribe, among others, argues that the 2008 pay increase does not implicate the spirit of the Emoluments Clause because “the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote.”  Since Clinton played no role in the pay increase, the theory goes, there is no reason why it should affect her eligibility for appointment.  As Professor Sandy Levinson puts it, “no serious argument can be made that preventing [Clinton’s] nomination would relate to the purposes (preventing self-dealing or corruption) of the initial clause.” 

            There are several problems with this argument.  First, the Emoluments Clause is a prophylactic rule that applies regardless of whether the Member voted on, or even voted against, the pay raise for the office in question.  Whether it was to prevent clever forms of self-dealing or corruption or whether it was to incentivize Members to limit pay increases, the Framers wanted the disability to apply regardless of whether the Member had any responsibility for the pay raise in question. 

            Second, it may be an overstatement to say that the 110^th Congress bore no responsibility for the pay raise since Congress was responsible for approving the budget and appropriating the funds for the pay increase.  Third, if the use of automatic pay increases were recognized as a means of circumventing the Emoluments Clause, this would give Members an incentive to adopt such pay increases, which would seem to be the opposite of what the Clause was attempting to accomplish. 

            Finally, the text of the Emoluments Clause simply requires that there have been an increase in emoluments during the relevant time and does not specify how the increase must come about.  Thus, even Professor Tribe apparently acknowledges that the Clause applies to Senator Clinton,  If this is so, it is difficult to see how the Saxbe Fix becomes any more effective merely because of the automatic nature of the pay increase. 

            Because, as I previously argued, the Saxbe Fix does not effectively remediate the violation of the Emoluments Clause, Hillary Clinton is in fact unconstitutional.  (see Michael Stokes Paulson, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) and this post on the Volokh Conspiracy).  So, in fact, is Senator Ken Salazar, who will be nominated as Secretary of the Interior, and possibly Representative Hilda Solis, who will be nominated as Secretary of Labor (although in the latter case this depends on whether there is another pay increase which occurs while she is serving in the 111^th Congress, which began earlier today). 

            As Professor Tribe notes, it may very well be that no plaintiff will ever have standing to contest in court the constitutionality of any of these appointments.  However, Tribe asserts that President-elect Obama would not violate the Emoluments Clause and his constitutional oath merely because “the institutional limits of the Article III Judicial Branch would let him get away with a violation of that oath.”  Tribe contends that this would “hardly satisfy the constitutional conscience of a chief executive as dedicated to the to the Constitution as President-elect Obama, who reveres the Constitution as something more than the sum total of judicially enforceable restraints on government power.” 

            So President-elect Obama really cares about the Constitution, unlike some presidents that Tribe is too diplomatic to mention, and will comply with its restraints even when it is inconvenient to do so.  Of course, in this case it turns out, somewhat conveniently, that President-elect Obama interprets the Constitution to allow him to do what he wants to do, but I am sure that is just a happy coincidence.   

          The Emoluments Clause of the Constitution, art. I, § 6, cl. 2, provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time.”  In plain English, this means that if Senator X is elected in 2006 for a term to run from 2007-2013, and the salary or benefits for a federal office are increased during that term (say in 2008), he or she cannot thereafter (say in 2009) be appointed to that office until the expiration of the term (i.e., in January 2013). 

            From time to time, however, it transpires that a President would like to appoint to federal office a Senator or Representative who, on the face of it, would appear to be disqualified from appointment under the Emoluments Clause.  Naturally, in such situations the President, having taken a solemn oath to protect and defend the Constitution, will regretfully select another well-qualified nominee for the position. 

            Just kidding.  What most presidents have done in that situation is to employ something called the “Saxbe fix,” so-called after Senator William Saxbe, who was appointed by President Nixon as Attorney General in 1973.  The Saxbe fix is legislation that repeals the pay raise (or other benefit increase) for the office in question so that the appointee will receive the same emoluments as the office provided at the beginning of his or her congressional term.  This roll-back provision, it is argued, satisfies the literal requirement of the Emoluments Clause because the emoluments are now the same as they were at the beginning of the time for which the appointee was elected and thus have not, in a sense, increased. 

            Certainly there are contexts in which this construction of the term “increased” would be perfectly reasonable.  For example, if one were asked if the stock of IBM increased today, one would reasonably construe the question to mean whether the closing price was higher than the opening price, rather than whether the price rose at any point during the day (to which the answer would certainly be yes). 

            Yet there are other contexts in which this construction seems unreasonable.  For example, Article II (section 1, clause 7) of the Constitution provides that the President shall receive “a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected.”  Surely this provision would be violated if the President’s compensation were both increased and decreased during his term, even though the compensation rate at the beginning and end were identical. 

            One might say that the presidential compensation clause is ambiguous but must be read in light of its purpose (presumably to prevent manipulation of the president’s compensation for political purposes).  Yet this does not seem quite right.  Even without knowing the specific rationale behind the clause, it is reasonably apparent that it does not permit a series of increases and decreases that cancel each other out.  For one thing, if the Framers had so intended, they could have simply provided that the compensation at the commencement of the period for which the president was elected would be identical to the compensation at the conclusion of such period.  Thus, the presidential compensation clause unambiguously prohibits offsetting increases and decreases.

           

The Emoluments Clause presents a similar structural issue. If the Framers had intended merely to ensure that the emoluments of the executive office in question were no greater at the time of appointment than they were at the time of commencement of the appointed Member’s term, the Clause could have, for example, stated “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time unless said Emoluments shall subsequently have been decreased by at least an equivalent amount.”

The hypothetical language above was suggested by Professor Larry Tribe, a supporter of the Saxbe fix, who acknowledges that the absence of such an “escape clause” in the Constitution poses some difficulties for his position. Professor Tribe writes that “[s]omewhat troublesome for [supporting the constitutionality of the Saxbe fix] is the absence of any constitutional proviso for annulling what would otherwise be a violation of the Emoluments Clause by decreasing a salary hike at some later time.” In contrast, Tribe notes, the constitutional prohibition on accepting gifts or emoluments from foreign states “includes within its text [an] escape clause” allowing Congress to give its consent to the gift or prohibition. However, Tribe argues that this constitutional silence is of limited significance to the Emoluments Clause because the wording of the needed escape clause would be “singularly peculiar.”

However, if the Framers were concerned merely about the possibility that a Member might benefit (or expect to benefit) from a pay raise enacted during his congressional term, the most direct and intuitive way to address the problem would be simply to prohibit the Senator or Representative from receiving the increase. The Clause would thus read something like this: “No Senator or Representative who shall, during the Time for which he was elected, be appointed to any Civil Office . . . shall receive any encrease in Emoluments which have happened during such Time.”

There is nothing “peculiar” about such a direct prohibition on receipt of a financial benefit. Indeed, when the Framers wanted to place direct limitations on compensation or emoluments, they were well aware of how to do so. The presidential compensation clause is one example. Another is the 27^th Amendment (which, while not ratified until 1992, was proposed in 1789). This amendment provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” The fact that the Emoluments Clause is structured as a disability or disqualification to office, rather than simply a limitation on the emoluments that a Member can receive, hardly seems likely to be the result of mere inadvertence

Of course, no one can say for sure whether the Framers considered or even thought of the idea of structuring the Emoluments Clause in a way that would explicitly permit a Member to be appointed despite a prior increase in emoluments. One can say with a fair degree of certainty, however, that such an alternative structure would have been vigorously objected to by at least a significant number of those who debated, drafted and ratified the Constitution.

The initial proposal at the Constitutional Convention was to prohibit Members of Congress from being appointed to any civil offices during the time for which they were elected (and for a one-year period thereafter). This provision was supported by anti-Federalists such as George Mason and Elbridge Gerry on the theory that the prospect of such appointments would cause Members of Congress to become more oriented toward expanding the scope and power of the federal government, and less toward protecting the interests of their states. These delegates were particularly, but not exclusively, concerned with the possibility that the executive would use the power of appointment to corrupt Members of Congress.

Other delegates, such as James Madison, believed that the costs of a total prohibition on appointment of Members outweighed the benefits. Madison acknowledged that allowing such appointments had the potential for conflict of interest and exercise of undue influence by the executive, but felt that these concerns were not sufficient to justify a total ban on appointments, which he believed would be a disincentive to service in the federal legislature. Instead, he proposed a compromise to bar appointments only for offices that had been created or for which the emoluments had been increased during the time for which the member in question had been elected. Madison argued that the “unnecessary creation of offices, and increase of salaries, were the evils most experienced & if the door was shut agst. them, it might properly be left open for the appointt. of members to other offices as an encouragmt. to the Legislative service.” Although some anti-Federalists thought Madison’s proposal did not go far enough to prevent corruption, the Convention adopted his amendment.

As John F. O’Connor demonstrates in his article, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, the fact that the Emoluments Clause is a disability to appointment, rather than a mere prohibition on increased emoluments, better serves the Anti-Federalist purpose of minimizing the growth of government. This is because a disability tends to encourage Members of Congress (to the extent that they hope to be appointed to federal offices) to vote against any pay raise, while a mere prohibition on receiving increased emoluments does not. The structure of the Clause as a disability, rather than a limitation on compensation, therefore must be viewed as integral to the compromise that was struck, rather than as simple inadvertence or peculiarity or phrasing.

For this reason the Emoluments Clause cannot be circumvented by means of the Saxbe fix. While in hindsight it may be apparent that the Clause has not been an effective tool for limiting the size and cost of the federal government, the appropriate “fix” for this problem is to repeal the Clause (or, better yet, to substitute more effective constitutional limitations on the growth of government). It is not justification for ignoring the Clause’s express dictates.

 

            ABC News asks “Why Hasn’t Joe Biden Resigned His Senate Seat?”  Perhaps the answer is that Senator Biden, who is after all a law professor in his spare time, is familiar with this recent work of legal scholarship concluding that one can be President (or Vice-President) at the same time one holds a seat in the Senate (or House).  Specifically, Seth Barrett Tillman argues that the Incompatible Offices Clause (U.S. Const., art. I, § 7, cl. 2), which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office,” is inapplicable to the President or Vice-President because they do not hold offices “under the United States.”  Although Tillman’s argument is focused on the presidency, it would seem to allow Biden to remain a Senator while serving as Vice-President.   

            There are a number of very strong arguments against Tillman’s theory, of which unbroken historical practice is just one.  Professor Steven Calabresi lays out many of these arguments in a recent debate with Tillman.  One particular problem for a Vice President/Senator would be Article I, § 3, cl. 4, which provides that the “Vice President shall be President of the Senate, but shall have no Vote, unless they be equally divided.”  Does this mean that Vice President Biden would be unable to vote in his capacity as Senator Biden? 

            Nonetheless, perhaps Senator Biden wants to chew on this awhile before making a final decision on whether to give up his Senate seat.  After all, Senator Obama rushed into his resignation and look how much trouble that caused . . . .