Posted by Eugene Volokh:
Why Isn't Vice-President-Elect Biden Affected by the Emoluments Clause?
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228757349
Several people have asked: Why isn't Vice-President-Elect Joe Biden
presumptively barred from the Vice-Presidency by the Emoluments Clause
(which we discussed in connection with [1]Hillary Clinton's nomination
to be Secretary of State)? Apparently the Vice-President's salary was
raised during the term for which Senator Biden was elected (I haven't
independently confirmed that is so, but I will assume it for purposes
of this post). Would that mean that he can't hold that job, at least
unless a [2]Saxbe Fix temporarily lowers the salary to its earlier
level?
No, because the Emoluments Clause says, "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" (emphasis added). Senator Biden is not being
appointed, but has rather been elected (or, if you prefer, will almost
certainly be voted into as office as Vice-President on Dec. 15 by the
Electors); this is also reflected by the constitutional title -- used
in the Twentieth Amendment -- of "Vice President elect." The
Emoluments Clause applies only to appointed officers, just as does the
Appointments Clause. ("[The President] shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments.")
There's also something of a [3]debate about whether the Presidency and
the Vice-Presidency are considered "Office[s]" for the purpose of
various constitutional clauses. But I need not engage that debate
here, because the limitation to "appointed" offices settles the matter
(though the debate might become relevant for a Vice-President who is
nominated by the President and confirmed by the Senate pursuant to the
Twenty-Fifth Amendment, in the event the elected Vice-President dies,
resigns, is impeached, or becomes President).
References
1. http://volokh.com/posts/chain_1227548910.shtml
2. http://volokh.com/posts/chain_1227548910.shtml
3. http://www.pennumbra.com/debates/debate.php?did=19
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