Posted by Eugene Volokh:
New Justice Department Opinion on the Ineligibility Clause (Sometimes Also
Called the Emoluments Clause):
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1243024314
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 [1]1987 Justice Department Office of Legal Counsel opinion opined
that the Saxbe Fix is unconstitutional, but [2]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 [3]some months before,
chiefly that "the Emoluments whereof shall have been encreased during
such time" is most plausibly read as "shall have been increased on
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.
References
1. http://volokh.com/files/olcineligibility1987.pdf
2. http://volokh.com/files/olcineligibility2009.pdf
3. http://volokh.com/posts/chain_1227548910.shtml
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