Ineligibility Clause

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United States of America
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Preamble and Articles
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The Ineligibility Clause, one of the two clauses often called the Emoluments Clause,[1][2] and sometimes also referred to as the Incompatibility Clause[3] or the Sinecure Clause,[4] is found in Article 1, Section 6, Clause 2 of the United States Constitution. It places limitations upon the employment of members of Congress and prohibits employees of the Executive Branch from serving in Congress during their terms in office. The name "Ineligibility Clause" is only used by a minority of writers, as compared to the name "Emoluments Clause".[1][2][5]

The clause states:

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 increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Purpose and origins[edit]

The purpose of the clause is twofold: to protect separation of powers by ensuring that no member of the Executive or judicial branches of the federal government of the United States could simultaneously serve in the Legislative Branch and to prevent Congress from conspiring to create offices or increase federal officials' salaries with the expectation that members of Congress would later be appointed to these posts.

The clause was drafted to prevent similar problems which had occurred in the British Parliament, but the records of the Philadelphia Convention suggest that there was considerable disagreement among the delegates as to what the scope of the disabilities created by the clause should be.[6] The clause does not bar simultaneous service as a federal judge and member of the executive branch, and under John Adams, John Marshall served as both United States Secretary of State and Chief Justice of the United States.[1] It is not clear whether a member of Congress could hold a reserve commission in the armed forces, as the only case was never ruled upon due to lack of legal standing.[1]

The prominent anti-Federalist politician Luther Martin reported that the clause, as originally drafted by the Philadelphia Convention, would have operated to prevent members of Congress from being appointed to offices in either the federal government and the governments of their respective home states for the period which they were elected to serve[7] but that this part of the clause drew objections and was stricken from the article.

Luther also criticized the clause itself, feeling that it would be ineffective in preventing this type of self-dealing, because members of Congress could easily create new offices, arrange for others to be appointed to them, and then fill the vacancies created by the movement of these government officers to new positions.[7]

Political and legal history[edit]

The Ineligibility Clause has resulted in some conflicts over potential appointments of Representatives and Senators to various Cabinet posts and other federal government offices.

Among the earliest questions to be addressed under the clause was whether a person serving as a United States Attorney could continue to serve in that capacity after being elected to a seat in Congress. In 1816, Samuel Herrick was elected to the 15th United States Congress while still serving as U.S. Attorney for the District of Ohio. He was not allowed to take his seat until the House of Representatives had determined whether his service as a U.S. Attorney created a conflict under the clause. Finally, in December 1817, the United States House Committee on Elections determined that there was no conflict, because even though Herrick had been elected to Congress, he had not taken the Congressional oath of office while he was still serving as a U.S. Attorney.[8]

The clause has been interpreted as barring the appointment of a member of Congress to a post in another branch of government only if the pay raise occurred during a single term for which the member had been elected. In other words, the disability does not carry over to subsequent terms in office. This is in line with the view expressed about the clause by U.S. Supreme Court Justice Joseph Story in his Commentaries on the Constitution of the United States.[9]

This particular issue came before United States Attorney General Harry M. Daugherty when President Calvin Coolidge sought to appoint Senator William S. Kenyon to the United States Court of Appeals for the Eighth Circuit. During Senator Kenyon's term (which was set to expire on March 4, 1919), Congress increased judicial salaries. Kenyon was then reelected in 1918 for another term, which was to begin immediately upon the expiration of his previous term of office. Coolidge nominated Kenyon to the court in 1922. When Coolidge requested Daugherty's formal opinion on Kenyon's eligibility, Daugherty (relying in part upon Story's Commentaries) explained that Kenyon would have been disqualified only until the end of his term during which salaries were actually raised, not for the next following term for which he had been elected.[8]

The converse of this position, however, is that the disability continues for the term for which the Senator or Congressman was elected, rather than for the actual length of time in office, so that mere resignation from the Congress does not remedy the disability created by the clause. This is the view that Attorney General Benjamin H. Brewster took in advising President Chester A. Arthur that former Iowa governor and U.S. Senator Samuel J. Kirkwood was ineligible for appointment to the U.S. Tariff Commission, even though Kirkwood had already resigned his Senate seat to become Secretary of the Interior. Brewster reasoned that because the Tariff Commission had been created in 1882, and Kirkwood's Senate term would have expired in 1883 if he had not first resigned, that Kirkwood was ineligible for the office.[8]

The clause was at issue in 1937, when fifty-one-year-old sitting United States Senator from Alabama Hugo Black was appointed an Associate Justice of the Supreme Court. Congress had recently increased the pension available to Justices retiring at the age of seventy. The emolument was one that Black would not derive benefit from for some 19 years and only if he survived that long. Furthermore, Time points out that the Retirement Act for which Black had voted merely guaranteed justices' pensions against reduction.[10] When Black's appointment was challenged in the U.S. Supreme Court, the court declined to hear the case, holding that the petitioner lacked standing.[11]

Perhaps the most widely known conflict involving this clause concerned the appointment of Senator William B. Saxbe of Ohio to the post of United States Attorney General by then-President Richard Nixon, in the aftermath of the Saturday Night Massacre. The salary of the Attorney General had been increased in 1969, in the first year of the Senate term that Saxbe was still serving in 1973. Nixon's solution was to have Congress reduce the Attorney General's salary to the value it had before Saxbe took office. This maneuver, known in legal and political circles as the Saxbe fix, has been used a number of times since, though its legality is not universally agreed-upon.

The Justice Department's Office of Legal Counsel is often called upon by the President to determine whether an appointment is in violation of the clause. This was the necessary when President Bill Clinton appointed Bill Richardson as United States Ambassador to the United Nations and appointed William Cohen as Secretary of Defense,[12] and when George W. Bush appointed Tony P. Hall Ambassador to the United Nations' Food and Agriculture Organization.[13] In none of these cases, however, was the appointee chosen by the President prohibited from taking office.

In late 2008, the question was raised whether the clause would apply to the appointment of Senator Hillary Rodham Clinton as Secretary of State. Subsequently, Congress reset the pay for the position to its level prior to Senator Clinton's election to the Senate.[14]

A related question was avoided by Senator Clinton nearly eight years earlier. Although the First Lady of the United States receives no salary, she holds spending and hiring authority concerning areas under her White House East Wing and residence purview. Her daughter, Chelsea Clinton, had often served as White House hostess or de facto acting First Lady during Clinton's Senatorial campaign. For the fortnight between Hillary Clinton taking office as a Senator and the expiration of Bill Clinton's presidency, Hillary Clinton abdicated the office and authority of First Lady in favor of Chelsea Clinton as Acting First Lady, negating the question of whether her White House authority violated the Ineligibility Clause.[citation needed]

There has been very little academic commentary on the clause and virtually no judicial explication of it. The only two lawsuits brought challenging appointments under the clause have been dismissed on grounds of lack of standing.[8]

References[edit]

  1. ^ a b c d Lieberman, Jethro K. (1999). A Practical Companion to the Constitution. University of California Press. p. 243. ISBN 0-520-21280-0. 
  2. ^ a b Lieberman, Jethro K. (1992). The Evolving Constitution. Random House. p. 264. ISBN 0-679-40530-5. 
  3. ^ Popular Names of Sections and Clauses of the United States Constitution, from usconstitution.net Accessed 24 November 2008.
  4. ^ The Constitutional Source Project courtesy of Winston & Strawn
  5. ^ "The Emoluments Clause also has been referred to as the Ineligibility Clause by a minority of commentators." O'Connor, John. "The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution", 24 Hofstra L. Rev. 89 (1995).
  6. ^ Records of the Federal Ratifying Convention
  7. ^ a b http://press-pubs.uchicago.edu/founders/documents/a1_6_2s3.html
  8. ^ a b c d O'Connor, John. "The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution", 24 Hofstra L. Rev. 89 (1995). Link courtesy of Steptoe & Johnson LLP.
  9. ^ Story, Joseph. Commentaries on the Constitution, Vol. 2: §§ 864--69.
  10. ^ "Nominee No. 93". Time. Time Inc. 1937-08-23. Retrieved 2008-11-26. 
  11. ^ See Ex parte Albert Levitt, 302 U.S. 633 (1937)
  12. ^ Memo Regarding the Applicability of the Clause to Bill Richardson and William Cohen, dated December 31, 1996, by Christopher Schroeder, formerly of the Office of Legal Counsel
  13. ^ Memo Regarding the Applicability of the Clause to Tony P. Hall, dated May 30, 2002, by Jay Bybee
  14. ^ "Secretary of state salary cut for Clinton", Associated Press via MSNBC (2008-12-11).

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